RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use all commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of the date on which (A) the Investor shall have sold all the Registrable Securities; or (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (hereinafter referred to as the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670} (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Eastgate Acquisitions Corp), Registration Rights Agreement (Eastgate Acquisitions Corp)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all~~ commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of (i) the date as of which the Holders may sell all of the Registrable Securities without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto) or (ii) the date on which (A) the ~~Investor~~ Holders shall have sold all the Registrable ~~Securities; or~~ Securities and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “"Registration Period”"). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall ~~use all commercially reasonable efforts to~~ respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall ~~use all commercially reasonable efforts to~~ cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The ~~Investor~~ Holder agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s 's obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by ~~the~~ a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Locateplus Holdings Corp), Registration Rights Agreement (Locateplus Holdings Corp)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section ~~2(a)~~2, the Company will ~~effect~~ affect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ 3.1 The Company shall use all commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective ~~within ninety (90) days after the Execution Date~~ and shall keep such Registration Statement effective until the earlier to occur of the date on which (A) the Investor shall have sold all the Registrable ~~Securities~~Securities actually issued or that the Company has an obligation to issue under the Investment Agreement; or (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within ~~seven~~ ten (710) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. ~~(b)~~ 3.2 The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. ~~(c)~~ 3.3 The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time ~~in order~~ to facilitate the disposition of the Registrable Securities. ~~(d)~~ 3.4 The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section ~~3(d)~~3.4, ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. ~~(e)~~ 3.5 As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as~~ “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the ~~Investor:~~ Investor (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; ~~{00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; , (iii) Of of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; , (iv) In in the event the Registration Statement is no longer effective~~; and / or~~ , or (v) If if the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) 3.6 The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. ~~(g)~~ 3.7 The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "“Investor's ’s Delay"”) shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's ’s Delay shall act to suspend all obligations of any ~~{00006670}~~ kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. ~~(h)~~ 3.8 At the request of the Investor, the Company's ’s counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form ~~suitable~~ reasonably acceptable to the Investor. ~~(i)~~ 3.9 The Company shall hold in confidence and not make any disclosure of information concerning the Investor ~~unless:~~ unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. ~~(j)~~ 3.10 The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section ~~3(j)~~3.10. ~~(k)~~ 3.11 The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend)~~. {00006670}~~. ~~(l)~~ 3.12 The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. ~~(m)~~ 3.13 If requested by the Investor, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by the Investor. ~~(n)~~ 3.14 The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. ~~(o)~~ 3.15 The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. 3.16 Within three (~~p) Within one (1~~3) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. ~~(q)~~ 3.17 The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Vizconnect, Inc.), Registration Rights Agreement (Lone Star Gold, Inc.)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) calendar days after the ~~Execution~~ Closing Date and shall keep such Registration Statement effective pursuant to Rule 415 until the ~~earlier to occur of the date~~ Filing Date on which (A) the ~~Investor~~ Holder shall have sold all the Registrable Securities or the shares included therein otherwise cease to be Registrable Securities~~; or~~ , and (B) the ~~Investor~~ Holder has no right to ~~acquire any additional shares of~~ convert the securities it owns into Common Stock under the ~~Investment~~ Subscription Agreement, Debenture Agreement or Warrant Agreement, respectively (~~hereinafter referred to as~~ the “Registration Period”)~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) ~~shall~~ shall, as of the date thereof, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall ~~use all commercially reasonable efforts to~~ respond to any and all SEC comments or correspondence, whether written or oral, direct or indirect, formal or informal (“Comments”), within seven (7) business days ~~from~~ of receipt by the Company of such Comments. If the Company fails to respond within seven (7) business days of receipt of SEC Comments, the Company shall pay to the Holder an amount equal to two percent (2%) per month, on a pro rata basis, compounded daily, of the Face Amount as liquidated damages and not as a penalty; provided that the seven (7) business day period provided herein shall be extended as may be required by delays caused by Holder’s counsel pursuant to paragraph 3(g) below, and, provided further, that such ~~comments by the Company~~seven (7) business day period shall be extended two (2) business days for responses to SEC staff accounting comments. The Company shall ~~use all commercially reasonable efforts to~~ cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ two (52) business days after notice from the SEC that the Registration Statement ~~may be declared effective~~has been cleared of all comments. ~~The Investor agrees~~ Failure to ~~provide all information which it is required by law to provide to~~ do so will result in the ~~Company, including the intended method of disposition~~ Face Amount of the ~~Registrable Securities~~Debentures to be increased, ~~and~~ as liquidated damages, by five percent (5%) per calendar day for each day that the ~~Company’s obligations set forth above shall be conditioned on~~ Company does not request acceleration for effectiveness from the ~~receipt of such information. {00006670}~~SEC. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ Holder thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock ~~covered by the~~ available under a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof~~. (c) The Company shall make available~~ . Prior to conversion of all the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act Shares (as defined ~~below) and to be incorporated by reference~~ in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Debenture Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the ~~Investor~~Holder of this date) if at any time the conversion of all the Shares outstanding would result in an insufficient number of authorized shares of Common Stock being available to cover all the conversions, or in the event that Holder deems that the Shares authorized will become insufficient, the Company will move to call and hold a shareholder’s meeting within thirty (30) calendar days for the sole purpose of authorizing additional shares of Common Stock to facilitate the conversions. ~~The event(s) of~~ In such an ~~Investor's Delay~~ event the Company shall ~~act~~ recommend to ~~suspend~~ all ~~obligations of any {00006670} kind or nature~~ shareholders and management of the Company ~~under any and all agreements~~ to vote their shares in favor of ~~any nature or kind between~~ increasing the ~~Company and the Investor. (h) At the request~~ authorized number of ~~the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness~~ shares of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreementCommon Stock. The Company ~~agrees~~ represents and warrants that under no circumstances will it ~~shall, upon learning that disclosure of such information concerning~~ deny or prevent Holder’s right to convert the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then Shares as permitted under the ~~rules~~ terms of ~~such exchange~~ the Subscription Agreement or ~~system~~the Debenture Registration Rights Agreement. The ~~Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with~~ Holder retains the ~~Investor~~ right to request additional shares upon the determination the company may not be able to facilitate conversions in the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant heretofuture. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Debenture Registration Rights Agreement (Eagle Broadband Inc), Debenture Registration Rights Agreement (Eagle Broadband Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to ~~prepare and~~ file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), 2(b), or 2(e), the Company will use its commercially reasonable efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, ~~with respect~~ pursuant thereto, the Company shall have the following obligations: (a) The Company shall promptly prepare and file with the SEC a Registration Statement with respect to the Registrable Securities and use ~~all~~ its commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective ~~within~~ as soon as practicable after such filing (but in no event later than the Effectiveness Deadline). The Company shall keep each Registration Statement effective for up to ninety (90) days ~~after~~ or, if earlier, until the ~~Execution Date and~~ date on which the Investors shall have sold all of the Registrable Securities covered by such Registration Statement, provided, however, that in the case of any Registration of Registrable Securities on Form F-3 that are intended to be offered on a continuous or delayed basis, subject to compliance with applicable rules promulgated by the SEC, such 90-day period shall be extended for up to an additional sixty (60) days, if necessary, to keep ~~such~~ the Registration Statement effective until ~~the earlier to occur of the date on which~~ all such Registrable Securities are sold (A) the Investor shall have sold all the Registrable Securities; or (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (hereinafter referred to as the “Registration Period”). The Company shall ensure that each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements ~~therein~~therein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading. The Company shall ~~use all commercially reasonable efforts~~ respond in writing to ~~respond to all~~ comments made by the SEC ~~comments within seven~~ in respect of a Registration Statement as soon as practicable, but in no event later than fifteen (715) ~~business~~ days ~~from~~ after the receipt of ~~such~~ comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after or notice from the SEC that ~~the~~ an amendment is required in order for a Registration Statement ~~may~~ to be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the ~~event the number~~ case of ~~shares of Common Stock covered by the~~ amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement ~~is at any time insufficient~~ (including pursuant to ~~cover all~~ this Section 3(b)) by reason of the ~~Registrable Securities~~Company filing a report on Form 20-F, Form 6-K or any analogous report under the Securities Exchange Act of 1934, as amended (the “1934 Act”), the Company shall ~~amend~~ have incorporated such report by reference into such Registration Statement, ~~or file a new Registration Statement (on the short form available therefor,~~ if applicable), or ~~both, so as to cover all of~~ shall file such amendments or supplements with the ~~Registrable Securities, in each case,~~ SEC as soon as ~~practicable, but in any event within thirty (30) calendar days~~ reasonably practicable after the ~~necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors~~ date on which the ~~Company reasonably elects to rely), assuming~~ 1934 Act report is filed which created the requirement for the Company ~~has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after~~ to amend or supplement such ~~shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new~~ Registration ~~Statement to become effective as soon as practicable following the filing thereof~~Statement. (c) The Company shall ~~make available~~ (A) permit Legal Counsel to review and comment upon (i) a Registration Statement at least two (2) Business Days prior to its filing with the SEC and (ii) all amendments and supplements to all Registration Statements (except for Annual Reports on Form 20-F, Current Reports on Form 6-K, and any similar or successor reports) within a reasonable number of days prior to their filing with the SEC, and (B) not file any Registration Statement or amendment or supplement thereto in a form to which Legal Counsel reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement or any amendment or supplement thereto without the prior approval of Legal Counsel, which consent shall not be unreasonably withheld. The Company shall furnish to Legal Counsel, without charge, (i) copies of any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to any Registration Statement, (ii) promptly after the same is prepared and filed with the SEC, one copy of any Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by an Investor, and all exhibits and (iii) upon the effectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and all amendments and supplements thereto. The Company shall reasonably cooperate with Legal Counsel in performing the Company’s obligations pursuant to this Section 3. (d) The Company shall furnish to each Investor whose Registrable Securities are included in any Registration ~~Statement and its legal counsel~~ Statement, without charge: , (i) promptly after the same is prepared and filed with the ~~SEC~~ SEC, at least one ~~(1)~~ copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by ~~reference~~ reference, if requested by an Investor, all exhibits and ~~all exhibits, the prospectus included in such Registration Statement (including~~ each preliminary prospectus~~) and~~, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, ~~the Company shall make available~~ ten (10) copies of the ~~prospectus, via XXXXX,~~ prospectus included in such Registration Statement and all amendments and supplements ~~thereto; and~~ thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as ~~the~~ such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable ~~Securities~~Securities owned by such Investor. (de) The Company shall use ~~commercially~~ its reasonable best efforts ~~to: (i)~~ to register and qualify the ~~Registrable Securities~~ securities covered by the Registration Statement under ~~such other~~ the securities ~~or “blue sky”~~ laws of ~~such states in~~ any jurisdiction, as reasonably requested by the ~~United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions~~Investors, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided~~, however~~, that the Company shall not be required ~~in connection therewith or as a condition thereto to: a.~~ to qualify to do business ~~in any jurisdiction where it would not otherwise be required~~ or file a general consent to ~~qualify but for this Section 3(d), or b. subject itself to general taxation~~ service of process in any such ~~jurisdiction.~~ jurisdictions. (f) The Company shall ~~promptly~~ notify ~~the Investor who holds~~ each Holder of Registrable Securities ~~of the receipt~~ covered by the ~~Company~~ Registration Statement at any time when a prospectus relating thereto is required to be delivered under applicable securities laws of (a) the issuance of any ~~notification with respect to~~ stop order by the ~~suspension of the registration~~ Commission, or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (eb) ~~As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of~~ the happening of any event or the existence of any condition as a result of which ~~the~~ any prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or ~~omission~~ omits to state a material fact required to be stated therein or necessary to make the statements ~~therein,~~ therein not misleading in the light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwisethen existing. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (fg) The Company shall use ~~all~~ its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify ~~the~~ Legal Counsel and each Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investorsuch purpose. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the ~~Investor unless:~~ Company unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning ~~the~~ an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to ~~the~~ such Investor and allow ~~the~~ such Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order ~~covering~~ for, such information. (ji) The Company shall use ~~all~~ its commercially reasonable efforts either to ~~maintain designation and quotation~~ (i) cause all of ~~all~~ the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any a Registration Statement to be listed on each ~~other national~~ securities exchange ~~and automated quotation system, if any,~~ on which securities of the same class or series issued by the Company are then listed, if any, which initially shall be the Principal Market, if the listing of such Registrable Securities is then permitted under the rules of such exchange or ~~system~~(ii) secure the inclusion for quotation of all of the Registrable Securities on another Eligible Market and, without limiting the generality of the foregoing, to use its commercially reasonable efforts to arrange for at least two market makers to register with the Financial Industry Regulatory Authority, Inc. as such with respect to such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section ~~3(j~~3(i). (kj) The Company shall cooperate with the ~~Investor~~ Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate the ~~prompt~~ timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the ~~Investor~~ Investors may reasonably request (and ~~after any sales of~~ registered in such ~~Registrable Securities by~~ names as the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant heretoInvestors may request. (mk) If requested by ~~the~~ an Investor, the Company ~~shall:~~ shall as soon as practicable (i) ~~As soon as reasonably practical~~ incorporate in a prospectus supplement or post-effective amendment such information as ~~the~~ an Investor reasonably ~~determines should~~ requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment ~~as soon as reasonably possible~~ after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by ~~the Investor~~an Investor holding any Registrable Securities. (nl) The Company shall use ~~all~~ its commercially reasonable efforts to cause the Registrable Securities covered by ~~the applicable~~ a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to ~~facilitate~~ consummate the disposition of such Registrable Securities. (om) The Company shall otherwise use ~~all~~ its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (pn) ~~Within one (1) business day~~ As soon as reasonably practical after ~~the~~ a Registration Statement which ~~includes~~ covers Registrable Securities is declared effective by the SEC, the Company shall ~~deliver~~ deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable ~~Securities,~~ Securities (with copies to the ~~Investor,~~ Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the SEC in the form attached hereto as Exhibit A. (o) Notwithstanding anything to the contrary herein, at any time after the Effective Date, the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company and its counsel, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (a “Grace Period”); provided, that the Company shall promptly (i) notify the Investors in writing of the existence of material, non-public information giving rise to a Grace Period (provided that in each notice the Company will not disclose the content of such material, non-public information to the Investors) and the date on which the Grace Period will begin, and (ii) notify the Investors in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed ten (10) consecutive Trading Days and during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of thirty (30) Trading Days and the first day of any Grace Period must be at least five (5) Trading Days after the last day of any prior Grace Period (each, an “Allowable Grace Period”). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Investors receive the notice referred to in clause (i) and shall end on and include the later of the date the Investors receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 3(g) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of the Grace Period, the Company shall again be bound by Section 3(f) with respect to the information giving rise thereto unless such material, non-public information is no longer applicable. Notwithstanding anything to the contrary, the Company shall cause the Depositary to deliver unlegended Common Shares and ADSs to a transferee of an Investor in accordance with the terms of the Primary Securities Purchase Agreement in connection with any sale of Registrable Securities with respect to which an Investor has entered into a contract for sale, prior to the Investor’s receipt of the notice of a Grace Period and for which the Investor has not yet settled. (p) Neither the Company nor any Subsidiary or affiliate thereof shall identify any Investor as an underwriter in any public disclosure or filing with the SEC, the Principal Market or any other applicable Eligible Market and any Buyer being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has under this Agreement or any other Transaction Document (as defined in the Primary Securities Purchase Agreement); provided, however, that the foregoing shall not prohibit the Company from including the disclosure found in the “Plan of Distribution” section attached hereto as Exhibit B in the Registration Statement. (q) ~~The~~ Neither the Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall ~~take all other reasonable actions necessary~~ the Company or any of its Subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to ~~expedite and facilitate disposition by~~ its securities, that would have the ~~Investor~~ effect of ~~Registrable Securities pursuant~~ impairing the rights granted to the ~~Registration Statement~~Buyers in this Agreement or otherwise conflicts with the provisions hereof.

Appears in 2 contracts

Samples: Registration Rights Agreement (eHi Car Services LTD), Securities Purchase Agreement (eHi Car Services LTD)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of (i) the date as of which the Holders may sell all of the Registrable Securities without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto) or (ii) the date on which (A) the ~~Investor~~ Holders shall have sold all the Registrable ~~Securities; or~~ Securities and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement respectively (~~hereinafter referred to as~~ the “"Registration Period”")~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall ~~use all commercially reasonable efforts to~~ respond to all SEC comments within seven (7) business days ~~from~~ of receipt ~~of such comments~~ by the Company. If the Company fails to respond within seven (7) business days of receipt of SEC comments, the Company shall pay to the Investor a cash amount within three (3) business days of the end of the month equal to 2% per month, on a pro rata basis, of the amount paid to purchase the Debentures then outstanding, as liquidated damages and not as a penalty; provided that the seven (7) business day period provided herein shall be extended as may be required by delays caused by Holders' counsel pursuant to paragraph 3g below, and, provided further, that such seven (7) business day period shall be extended five (5) business days for responses to SEC staff accounting comments. The Company shall ~~use all commercially reasonable efforts to~~ cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock ~~covered by the~~ available under a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Diversified Product Inspections Inc), Registration Rights Agreement (Diversified Product Inspections Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) calendar days after the ~~Execution Date~~ date and shall keep such Registration Statement effective pursuant to Rule 415 until ~~the earlier to occur of~~ the date on which (A) the ~~Investor~~ Holder shall have sold all the Registrable ~~Securities; or~~ Securities and (B) the ~~Investor~~ Holder has no right to ~~acquire any additional shares of~~ convert the Shares it owns into Common Stock under the ~~Investment~~ Subscription Agreement, Debenture Agreement or Warrant Agreement, respectively (~~hereinafter referred to as~~ the “"Registration Period”")~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall ~~use all commercially reasonable efforts to~~ respond to any and all SEC comments or correspondence, whether written or oral, direct or indirect, formal or informal ("Comments"), within seven (7) business days ~~from~~ of receipt by the Company of such Comments. If the Company fails to respond within seven (7) business days of receipt of SEC Comments, the Company shall pay to the Holder an amount equal to two percent (2%) per month, on a pro rata basis, compounded daily, of the Face Amount as liquidated damages and not as a penalty; provided that the seven (7) business day period provided herein shall be extended as may be required by delays caused by Holder's counsel pursuant to paragraph 3g below, and, provided further, that such ~~comments by the Company~~seven (7) business day period shall be extended two (2) business days for responses to SEC staff accounting comments. The Company shall ~~use all commercially reasonable efforts to~~ cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ two (52) business days after notice from the SEC that the Registration Statement ~~may be declared effective~~has been cleared of all comments. ~~The Investor agrees~~ Failure to ~~provide all information which it is required by law to provide to~~ do so will result in the ~~Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned~~ Face Amount on the ~~receipt of such information. {00006670}~~Debentures to be increased by five percent (5%) per calendar day the Company does not request acceleration from the SEC, as liquidated damages. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ Holder thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock ~~covered by the~~ available under a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof~~. (c) The Company shall make~~ . Prior to conversion of all the Shares, if at any time the conversion of all the Shares outstanding would result in an insufficient number of authorized shares of Common Stock being available to cover all the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) theretoconversions, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, howeverevent, that Holder deems that the ~~Company shall not be required~~ Shares authorized will become insufficient, then in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company will move to call and hold a shareholder’s meeting within thirty (30) calendar days of such event for the sole purpose of authorizing additional shares of Common Stock to facilitate the conversions. In such an event the Company shall ~~notify Investor in writing~~ recommend to all shareholders and management of the ~~happening~~ Company to vote their shares in favor of ~~any event as a result~~ increasing the authorized number of ~~which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement~~ shares of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the InvestorCommon Stock. The Company ~~shall also promptly notify~~ represents and warrants that under no circumstances will it deny or prevent Holder’s right to convert the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale Shares as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the ~~rules~~ terms of ~~such exchange~~ this Subscription Agreement or ~~system~~this Registration Rights Agreement. The ~~Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with~~ Holder retains the ~~Investor~~ right to request additional shares upon the determination the company may not be able to facilitate conversions in the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant heretofuture. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Debenture Registration Rights Agreement (Hyperdynamics Corp), Debenture Registration Rights Agreement (Hyperdynamics Corp)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use ~~all~~ commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of (i) the date on which (A) the Investor shall have sold all the Registrable Securities; or and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use ~~all commercially reasonable~~ its best efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use ~~all commercially reasonable~~ its best efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by ~~the~~ a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by ~~the~~ a Registration Statement under such other securities or “blue sky” laws of such states in the United States as ~~the~~ any Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify ~~the~~ each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as~~ “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration ~~Default~~ Default, (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to ~~the~~ each Investor. The Company shall also promptly notify ~~the Investor:~~ Investor (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; ~~{00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , (iii) Of of the Company’s reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; , (iv) In in the event the Registration Statement is no longer effective~~; and / or~~ , or (v) ~~If the~~ if Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise.. The Company acknowledges that its failure to cure the Registration Default within ten (10) business days will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties’ good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. It is the intention of the parties that interest payable under any of the terms of this Agreement shall not exceed the maximum amount permitted under any applicable law. If a law, which applies to this Agreement which sets the maximum interest amount, is finally interpreted so that the interest in connection with this Agreement exceeds the permitted limits, then: (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. In case any provision of this Agreement is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, and the validity and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. (f) The Company shall use ~~all~~ commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon ~~the~~ a Registration Statement and all amendments and supplements thereto at least ~~one~~ seven (17) ~~calendar day~~ business days prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects. ~~However~~The Company may request to shorten the Investor’s review period and the Investor will, ~~any postponement~~ if possible, attempt to comply with the accelerated review period. The Company shall not submit to the SEC a request for acceleration of ~~a filing~~ the effectiveness of a Registration Statement or ~~any postponement of a request for acceleration or any postponement of~~ file with the ~~effective date or effectiveness of~~ SEC a Registration Statement ~~by written request~~ or any amendment or supplement thereto without the prior approval of such counsel or the ~~Investor (collectively~~Investor, ~~the "Investor's Delay")~~ which approval shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investorbe unreasonably withheld. (h) At the request of the Investor, the ~~Company's counsel~~ Company shall ~~furnish~~ cause to ~~the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall~~ be ~~issued as of~~ furnished to Investor, on the date of the effectiveness of a Registration Statement, a legal opinion, in form and substance reasonably acceptable to Investor’s counsel, dated as of such date, of counsel representing the ~~registration statement and be in a form suitable to the Investor~~Company for purposes of such Registration Statement. (i) The Company shall hold in confidence and not make any disclosure of information concerning a Investor provided to the ~~Investor unless:~~ Company unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning ~~the~~ a Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to ~~the~~ such Investor and allow ~~the~~ such Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order ~~covering~~ for, such information. (j) The Company shall use ~~all~~ commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s ~~commercially reasonable~~ best efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably ~~request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670}~~request. (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as ~~the~~ such Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by ~~the~~ such Investor. (n) The Company shall use ~~all~~ commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to ~~facilitate~~ consummate the disposition of such Registrable Securities. (o) The Company shall otherwise use ~~all~~ commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to ~~the~~ a Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Houseraising, Inc.), Registration Rights Agreement (Egpi Firecreek, Inc.)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) calendar days after the ~~Execution Date~~ date and shall keep such Registration Statement effective pursuant to Rule 415 until ~~the earlier to occur of~~ the date on which (A) the ~~Investor~~ Holder shall have sold all the Registrable ~~Securities; or~~ Securities and (B) the ~~Investor~~ Holder has no right to ~~acquire any additional shares of~~ convert the Shares it owns into Common Stock under the ~~Investment~~ Subscription Agreement, Debenture Agreement or Warrant Agreement, respectively (~~hereinafter referred to as~~ the “"Registration Period”")~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall ~~use all commercially reasonable efforts to~~ respond to any and all SEC comments or correspondence, whether written or oral, direct or indirect, formal or informal ("Comments"), within seven (7) business days ~~from~~ of receipt by the Company of such Comments. If the Company fails to respond within seven (7) business days of receipt of SEC Comments, the Company shall pay to the Holder an amount equal to two percent (2%) per month, on a pro rata basis, compounded daily, of the Face Amount as liquidated damages and not as a penalty; provided that the seven (7) business day period provided herein shall be extended as may be required by delays caused by Holder's counsel pursuant to paragraph 3g below, and, provided further, that such ~~comments by the Company~~seven (7) business day period shall be extended two (2) business days for responses to SEC staff accounting comments. The Company shall ~~use all commercially reasonable efforts to~~ cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ two (52) business days after notice from the SEC that the Registration Statement ~~may be declared effective~~has been cleared of all comments. ~~The Investor agrees~~ Failure to ~~provide all information which it is required by law to provide to~~ do so will result in the ~~Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned~~ Face Amount on the ~~receipt of such information. {00006670}~~Debentures to be increased by five percent (5%) per calendar day the Company does not request acceleration from the SEC, as liquidated damages. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ Holder thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock ~~covered by the~~ available under a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof~~. (c) The Company shall make~~ . Prior to conversion of all the Shares, if at any time the conversion of all ======== the Shares outstanding would result in an insufficient number of authorized shares of Common Stock being available to cover all the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) theretoconversions, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, howeverevent, that Holder deems that the ~~Company shall not be required~~ Shares authorized will become insufficient, then in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company will move to call and hold a shareholder's meeting within thirty (30) calendar days of such event for the sole purpose of authorizing additional shares of Common Stock to facilitate the conversions. In such an event the Company shall ~~notify Investor in writing~~ recommend to all shareholders and management of the ~~happening~~ Company to vote their shares in favor of ~~any event as a result~~ increasing the authorized number of ~~which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement~~ shares of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the InvestorCommon Stock. The Company ~~shall also promptly notify~~ represents and warrants that under no circumstances will it deny or prevent Holder's right to convert the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale Shares as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the ~~rules~~ terms of ~~such exchange~~ this Subscription Agreement or ~~system~~this Registration Rights Agreement. The ~~Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with~~ Holder retains the ~~Investor~~ right to request additional shares upon the determination the company may not be able to facilitate conversions in the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant heretofuture. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Debenture Registration Rights Agreement (Securac Corp), Debenture Registration Rights Agreement (Hyperdynamics Corp)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use ~~all~~ commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of (i) the date on which (A) the Investor shall have sold all the Registrable Securities; or and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “"Registration Period”"). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use ~~all commercially reasonable~~ its best efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use ~~all commercially reasonable~~ its best efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s 's obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by ~~the~~ a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via ~~XXXXX~~EDGAR, included in such Registration Statement and all amendments and ~~supplements~~ xxxxlements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by ~~the~~ a Registration Statement under such other securities or “"blue sky” " laws of such states in the United States as ~~the~~ any Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify ~~the~~ each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “"blue sky” " laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as “~~"Registration Default”") and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration ~~Default~~ Default, (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to ~~the~~ each Investor. The Company shall also promptly notify ~~the Investor:~~ Investor (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; ~~{00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , (iii) Of of the Company’s 's reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; , (iv) In in the event the Registration Statement is no longer effective~~; and / or~~ , or (v) ~~If the~~ if Registration Statement is stale as a result of the Company’s 's failure to timely file its financials or otherwise.. The Company acknowledges that its failure to cure the Registration Default within ten (10) business days will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. It is the intention of the parties that interest payable under any of the terms of this Agreement shall not exceed the maximum amount permitted under any applicable law. If a law, which applies to this Agreement which sets the maximum interest amount, is finally interpreted so that the interest in connection with this Agreement exceeds the permitted limits, then: (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. In case any provision of this Agreement is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, and the validity and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. (f) The Company shall use ~~all~~ commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon ~~the~~ a Registration Statement and all amendments and supplements thereto at least ~~one~~ seven (17) ~~calendar day~~ business days prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects. ~~However~~The Company may request to shorten the Investor's review period and the Investor will, ~~any postponement~~ if possible, attempt to comply with the accelerated review period. The Company shall not submit to the SEC a request for acceleration of ~~a filing~~ the effectiveness of a Registration Statement or ~~any postponement of a request for acceleration or any postponement of~~ file with the ~~effective date or effectiveness of~~ SEC a Registration Statement ~~by written request~~ or any amendment or supplement thereto without the prior approval of such counsel or the ~~Investor (collectively~~Investor, ~~the "Investor's Delay")~~ which approval shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investorbe unreasonably withheld. (h) At the request of the Investor, the ~~Company's counsel~~ Company shall ~~furnish~~ cause to ~~the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall~~ be ~~issued as of~~ furnished to Investor, on the date of the effectiveness of a Registration Statement, a legal opinion, in form and substance reasonably acceptable to Investor's counsel, dated as of such date, of counsel representing the ~~registration statement and be in a form suitable to the Investor~~Company for purposes of such Registration Statement. (i) The Company shall hold in confidence and not make any disclosure of information concerning a Investor provided to the ~~Investor unless:~~ Company unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning ~~the~~ a Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to ~~the~~ such Investor and allow ~~the~~ such Investor, at the Investor’s 's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order ~~covering~~ for, such information. (j) The Company shall use ~~all~~ commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company~~’s commercially reasonable~~ 's best efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably ~~request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670}~~request. (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as ~~the~~ such Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by ~~the~~ such Investor. (n) The Company shall use ~~all~~ commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to ~~facilitate~~ consummate the disposition of such Registrable Securities. (o) The Company shall otherwise use ~~all~~ commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to ~~the~~ a Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Apolo Gold & Energy Inc.), Registration Rights Agreement (Apolo Gold & Energy Inc.)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section 2(a), the Company ~~will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company~~ shall have the following ~~obligations~~obligations with respect to the Registration Statement: (a) The Company shall use all commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the ~~Execution Date~~ date that the Registration Statement is filed and shall keep such Registration Statement effective until the earlier to occur of the date on which (A) the Investor shall have sold all the Registrable Securities; or (B) the ~~Investor~~ Company has no right to ~~acquire~~ sell any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within ~~seven~~ ten (710) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670} (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Axiologix Education Corp), Registration Rights Agreement (Viper Resources,Inc.)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use ~~all~~ commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of (i) the date on which (A) the Investor shall have sold all the Registrable Securities; or and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use ~~all commercially reasonable~~ its best efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use ~~all commercially reasonable~~ its best efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by ~~the~~ a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by ~~the~~ a Registration Statement under such other securities or “blue sky” laws of such states in the United States as ~~the~~ any Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify ~~the~~ each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as~~ “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration ~~Default~~ Default, (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to ~~the~~ each Investor. The Company shall also promptly notify ~~the Investor:~~ Investor (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; ~~{00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , (iii) Of of the Company’s reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; , (iv) In in the event the Registration Statement is no longer effective~~; and / or~~ , or (v) ~~If the~~ if Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. . The Company acknowledges that its failure to cure the Registration Default within ten (10) business days will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties’ good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. It is the intention of the parties that interest payable under any of the terms of this Agreement shall not exceed the maximum amount permitted under any applicable law. If a law, which applies to this Agreement which sets the maximum interest amount, is finally interpreted so that the interest in connection with this Agreement exceeds the permitted limits, then: (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. In case any provision of this Agreement is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, and the validity and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. (f) The Company shall use ~~all~~ commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon ~~the~~ a Registration Statement and all amendments and supplements thereto at least ~~one~~ seven (17) ~~calendar day~~ business days prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects. ~~However~~The Company may request to shorten the Investor’s review period and the Investor will, ~~any postponement~~ if possible, attempt to comply with the accelerated review period. The Company shall not submit to the SEC a request for acceleration of ~~a filing~~ the effectiveness of a Registration Statement or ~~any postponement of a request for acceleration or any postponement of~~ file with the ~~effective date or effectiveness of~~ SEC a Registration Statement ~~by written request~~ or any amendment or supplement thereto without the prior approval of such counsel or the ~~Investor (collectively~~Investor, ~~the "Investor's Delay")~~ which approval shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investorbe unreasonably withheld. (h) At the request of the Investor, the ~~Company's counsel~~ Company shall ~~furnish~~ cause to ~~the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall~~ be ~~issued as of~~ furnished to Investor, on the date of the effectiveness of a Registration Statement, a legal opinion, in form and substance reasonably acceptable to Investor’s counsel, dated as of such date, of counsel representing the ~~registration statement and be in a form suitable to the Investor~~Company for purposes of such Registration Statement. (i) The Company shall hold in confidence and not make any disclosure of information concerning a Investor provided to the ~~Investor unless:~~ Company unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning ~~the~~ a Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to ~~the~~ such Investor and allow ~~the~~ such Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order ~~covering~~ for, such information. (j) The Company shall use ~~all~~ commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s ~~commercially reasonable~~ best efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably ~~request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670}~~request. (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as ~~the~~ such Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by ~~the~~ such Investor. (n) The Company shall use ~~all~~ commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to ~~facilitate~~ consummate the disposition of such Registrable Securities. (o) The Company shall otherwise use ~~all~~ commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to ~~the~~ a Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Egpi Firecreek, Inc.), Registration Rights Agreement (Egpi Firecreek, Inc.)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section ~~2(a)~~2, the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ 3.1 The Company shall use all commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ~~ninety~~ one hundred and twenty (90120) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of the date on which (A) the Investor shall have sold all the Registrable Securities; or (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within ~~seven~~ ten (710) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. ~~(b)~~ 3.2 The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. ~~(c)~~ 3.3 The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. ~~(d)~~ 3.4 The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section ~~3(d)~~3.4, ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. ~~(e)~~ 3.5 As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as~~ “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the ~~Investor:~~ Investor (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; ~~{00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; , (iii) Of of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; , (iv) In in the event the Registration Statement is no longer effective~~; and / or~~ , or (v) If if the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) 3.6 The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. ~~(g)~~ 3.7 The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any ~~in-kind~~ inkind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any ~~{00006670}~~ kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. ~~(h)~~ 3.8 At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. ~~(i)~~ 3.9 The Company shall hold in confidence and not make any disclosure of information concerning the Investor ~~unless:~~ unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. ~~(j)~~ 3.10 The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section ~~3(j)~~3.10. ~~(k)~~ 3.11 The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend)~~. {00006670}~~. ~~(l)~~ 3.12 The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. ~~(m)~~ 3.13 If requested by the Investor, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by the Investor. ~~(n)~~ 3.14 The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. ~~(o)~~ 3.15 The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. 3.16 Within three (~~p) Within one (1~~3) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. ~~(q)~~ 3.17 The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (New America Energy Corp.), Registration Rights Agreement (New America Energy Corp.)

RELATED OBLIGATIONS. At such time as the Company is obligated to ~~prepare and~~ file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a) or 2(d), the Company will use its best efforts to effect the registration of the Registrable Securities covered by such Registration Statement in accordance with the intended method of disposition thereof and, ~~with respect~~ pursuant thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall promptly prepare and file with the SEC a Registration Statement with respect to the applicable Registrable Securities (but in no event later than the Filing Deadline) and use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the applicable Registrable Securities to become effective ~~within ninety~~ as soon as practicable after such filing (90but in no event later than the Effectiveness Deadline). The Company shall use its best efforts to keep each Registration Statement effective pursuant to Rule 415 at all times until the earlier of (i) ~~days after~~ the ~~Execution Date and shall keep~~ date as of which the Investors may sell all of the Registrable Securities covered by such Registration Statement ~~effective until~~ without restriction pursuant to Rule 144(k) (or successor thereto) promulgated under the ~~earlier to occur of~~ 1933 Act or (ii) the date on which ~~(A)~~ the ~~Investor~~ Investors shall have sold all the Registrable ~~Securities; or~~ Securities covered by such Registration Statement (~~B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (hereinafter referred to as the “Registration Period”~~each, a "REGISTRATION PERIOD")~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ seller or sellers thereof as set forth in such Registration Statement. In the ~~event the number~~ case of ~~shares of Common Stock covered by the~~ amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement ~~is at any time insufficient~~ (including pursuant to ~~cover all~~ this Section 3(b)) by reason of the ~~Registrable Securities~~Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the Securities Exchange Act of 1934, as amended (the "1934 ACT"), the Company shall ~~amend~~ have incorporated such report by reference into the Registration Statement, if applicable, or shall file ~~a new Registration Statement (~~such amendments or supplements with the SEC on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors same day on which the ~~Company reasonably elects to rely), assuming~~ 1934 Act report is filed which created the requirement for the Company ~~has sufficient authorized shares at that time~~to amend or supplement the Registration Statement. c. The Company shall permit Legal Counsel to review and comment upon (i) the Registration Statement prior to its filing with the SEC and (ii) all other Registration Statements and all amendments and supplements to all Registration Statements (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and ~~if it does not, within thirty (30~~Current Reports on Form 8-K and any similar or successor reports) ~~calendar days after such shares are authorized~~filed under and pursuant to this Agreement prior to their filing with the SEC. The Company shall ~~use commercially reasonable efforts to cause such amendment and/or new~~ not submit a request for acceleration of the effectiveness of any Registration Statement or any amendment or supplement thereto without the prior approval of Legal Counsel, which consent shall not be withheld unless Legal Counsel has reasonable objections to ~~become effective as soon as practicable following~~ disclosures in the ~~filing thereof.~~ Registration Statement relating to (cI) the Registrable Securities or the Preferred Shares or (II) the Investors. The Company shall ~~make available~~ furnish to Legal Counsel, without charge, (i) any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to any Registration Statement, (ii) promptly after the same is prepared and filed with the SEC, one copy of any Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits and (iii) upon the effectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and all amendments and supplements thereto. The Company shall reasonably cooperate with Legal Counsel in performing the Company's obligations pursuant to this Section 3. d. The Company shall furnish to each Investor whose Registrable Securities are included in any Registration ~~Statement and its legal counsel~~ Statement, without charge: , (i) promptly after the same is prepared and filed with the ~~SEC~~ SEC, at least one ~~(1)~~ copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by ~~reference~~ reference, all exhibits and ~~all exhibits, the prospectus included in such Registration Statement (including~~ each preliminary prospectus~~) and~~, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, ~~the Company shall make available~~ such number of copies of the ~~prospectus, via XXXXX,~~ prospectus included in such Registration Statement and all amendments and supplements ~~thereto; and~~ thereto (or such other number of copies as such Investor may reasonably request) as they may reasonably request and (iii) such other documents, including copies of any preliminary or final prospectus, as ~~the~~ such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable ~~Securities~~Securities owned by such Investor. ~~(d)~~ e. The Company shall use ~~commercially reasonable~~ its best efforts ~~to: (i) register and qualify the~~ to cause such Registrable Securities ~~covered~~ to be registered with or approved by ~~the Registration Statement under~~ such other ~~securities~~ governmental agencies or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications authorities as may be necessary to ~~maintain~~ consummate the ~~effectiveness thereof during the Registration Period; (iii) take~~ disposition of such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities ~~for sale in such jurisdictions~~pursuant to a Registration Statement; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section ~~3(d~~3(e), ~~or b.~~ (y) subject itself to general taxation in any such jurisdiction. , or (z) file a general consent to service of process in any such jurisdiction. f. The Company shall ~~promptly~~ notify ~~the~~ Legal Counsel and each Investor ~~who holds Registrable Securities~~ in writing of the ~~receipt by the Company~~ happening of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As event, as promptly as practicable after becoming aware of such event, ~~the Company shall notify Investor in writing of the happening of any event~~ as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as “Registration Default”)~~ provided that in no event shall such notice contain any material, nonpublic information), and ~~use all diligent efforts to~~ promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and ~~make available~~ deliver such number of copies of such supplement or amendment to ~~the Investor~~Legal Counsel and each Investor as Legal Counsel or such Investor may reasonably request. The Company shall also promptly notify ~~the Investor:~~ Legal Counsel and each Investor in writing (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (~~the Company will prepare~~ notification of such effectiveness ~~which~~ shall be delivered to ~~the~~ Legal Counsel and each Investor by facsimile on the same day of such effectiveness and by overnight mail), ~~additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , and (iii) Of of the Company’s 's reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) g. The Company shall use ~~all commercially reasonable~~ its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify ~~the~~ Legal Counsel and each Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) h. The Company shall cooperate with the ~~Investor~~ Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate the ~~prompt~~ timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the ~~Investor~~ Investors may reasonably request (and ~~after any sales of~~ registered in such ~~Registrable Securities by~~ names as the ~~Investor, such certificates not bearing any restrictive legend). {00006670}~~Investors may request. ~~(l)~~ i. The Company shall provide a transfer agent ~~for~~ and registrar of all ~~the~~ such Registrable Securities not later than the effective date of the ~~first~~ applicable Registration ~~Statement filed pursuant hereto~~Statement. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) j. The Company shall otherwise use ~~all commercially reasonable~~ its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. k. Within five (p5) ~~Within one (1) business day~~ Business Days after ~~the~~ a Registration Statement which ~~includes~~ covers applicable Registrable Securities is ~~declared~~ ordered effective by the SEC, the Company shall ~~deliver~~ deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable ~~Securities,~~ Securities (with copies to the ~~Investor,~~ Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the ~~SEC.~~SEC in the form attached hereto as EXHIBIT A. ~~(q)~~ l. The Company shall take all other ~~reasonable~~ actions reasonably necessary to expedite and facilitate disposition by ~~the Investor~~ Investors of Registrable Securities pursuant to a Registration Statement. m. Notwithstanding anything to the contrary in Section 3(g), at any time after the applicable Registration Statement has been declared effective by the SEC, the Company may suspend the use or effectiveness of any Registration Statement (a "GRACE PERIOD") (and the Investors hereby agree not to offer or sell any Registrable Securities pursuant to such Registration Statement during such Grace Period) if there is material non-public information about the Company that the Company reasonably determines not to be in the best interests of the Company to disclose and that the Company is not otherwise required to disclose; provided, that the Company shall promptly (i) notify the Investors in writing of such suspension and the date on which the Grace Period will begin and (ii) notify the Investors in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed forty-five (45) consecutive days and during any 365 day period such Grace Periods shall not exceed an aggregate of ninety (90) days provided that no Grace Period arising out of the same set of facts, circumstances or transactions shall be permitted for consecutive forty-five (45) day periods of days (an "ALLOWABLE GRACE PERIOD"). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the holders receive the notice referred to in clause (i) and shall end on and include the later of the date the holders receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 3(g) hereof shall not be applicable during any Allowable Grace Period. Upon expiration of the Grace Period, the Company shall again be bound by the first sentence of Section 3(f) with respect to the information giving rise thereto unless such material non-public information is no longer applicable. n. In the event of any underwritten public offering, the Company shall enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. Each Investor participating in such underwriting shall also enter into and perform its obligations pursuant to such an agreement. o. The Company shall obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any) in customary form addressed to the Investors and the underwriters, if any, covering such matters as are customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by the Investors and such underwriters (it being agreed that the matters to be covered by such opinion or a written statement by such counsel delivered in connection with such opinions shall include, without limitation, an opinion, subject to reasonable and customary qualifications as of the date of the opinion and as of the effective date of the Registration Statement relating to the registration or most recent post-effective amendment thereto, as the case may be, regarding the absence from such registration statement and the prospectus included therein, as then amended or supplemented, including the documents incorporated by reference therein, of an untrue statement of a material fact or the omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading). p. The Company shall obtain "comfort letters" and updates thereof from the independent public accountants of the Company (and, if necessary, any other independent public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to the Investors and the underwriters, in customary form and covering matters of the type customarily covered in comfort letters in connection with primary underwritten offerings. q. The Company shall deliver such other customary documents and certificates as may be reasonably requested by the Investors and the managing underwriters, if any, including those to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. r. Promptly after the filing of a Registration Statement hereunder, the Company shall promptly secure the listing of all of the Registrable Securities covered by such Registration Statement upon each national securities exchange and automated quotation system, if any, upon which shares of Common Stock shall be so listed (subject to notice of issuance) and shall maintain, so long as any other shares of Common Stock shall be so listed, such listing of such Registrable Securities.

Appears in 2 contracts

Samples: Registration Rights Agreement (Divine Inc), Registration Rights Agreement (Divine Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will ~~effect~~ affect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after it is filed with the ~~Execution Date~~ SEC and shall keep such Registration Statement effective until the earlier to occur of (i) the date as of which the Holder may sell all of the Registrable Securities without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto) or (ii) the date on which (A) the ~~Investor~~ Holder shall have sold all the Registrable ~~Securities; or~~ Securities and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “"Registration Period”)") or (iii) 36 months. The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use ~~all commercially reasonable~~ its best efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use ~~all commercially reasonable~~ it's best efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The ~~Investor~~ Holder agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable ~~Securities~~Securities and responses to SEC comments directed to the Holder, and the Company’s 's obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by ~~the~~ a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available ~~therefor~~therefore, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity ~~therefor~~ therefore arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Xtreme Companies Inc), Registration Rights Agreement (Xtreme Companies Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) calendar days after the ~~Execution Date~~ date and shall keep such Registration Statement effective pursuant to Rule 415 until the earlier of (i) the date as of which the Investor may sell all of the Registrable Securities without restriction pursuant to ~~occur of~~ Rule 144(k) promulgated under the 1933 Act or (ii) the date on which (A) the Investor shall have sold all the Registrable ~~Securities; or~~ Securities and (B) the Investor has no right to ~~acquire any additional shares of~~ convert the Shares it owns into Common Stock under the ~~Investment~~ Subscription Agreement respectively (~~hereinafter referred to as~~ the “"Registration Period”")~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall ~~use all commercially reasonable efforts to~~ respond to all SEC comments within seven (7) business days ~~from~~ of receipt ~~of such comments~~ by the Company. If the Company fails to respond within seven (7) business days of receipt of SEC comments, the Company shall pay to the Investor a cash amount within three (3) business days of the end of the month equal to 2% per month, on a pro rata basis, of the amount paid to purchase the Debentures then outstanding, as liquidated damages and not as a penalty; provided that the seven (7) business day period provided herein shall be extended as may be required by delays caused by Holders' counsel pursuant to paragraph 3g below, and, provided further, that such seven (7) business day period shall be extended two (2) business days for responses to SEC staff accounting comments. The Company shall ~~use all commercially reasonable efforts to~~ cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. ~~The Investor agrees~~ Failure to ~~provide all information which it is required by law~~ do so will result in the Debenture's Conversion Price to ~~provide to~~ be lessened one percent (1%) per day the ~~Company, including~~ Company does not request acceleration from the ~~intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}~~SEC. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock ~~covered by the~~ available under a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof~~. (c) The Company shall make~~ . Prior to conversion of all the Shares, if at any time the conversion of all the Shares outstanding would result in an insufficient number of authorized shares of Common Stock being available to cover all the ~~Investor whose Registrable Securities are included~~ conversions, then in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company will move to call and hold a shareholder's meeting within thirty (30) calendar days of such event for the sole purpose of authorizing additional shares of Common Stock to facilitate the conversions. In such an event the Company shall ~~notify Investor in writing~~ recommend to all shareholders and management of the ~~happening~~ Company to vote their shares in favor of ~~any event as a result~~ increasing the authorized number of ~~which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement~~ shares of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the InvestorCommon Stock. The Company ~~shall also promptly notify~~ represents and warrants that under no circumstances will it deny or prevent Purchaser's right to convert the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale Shares as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the ~~rules~~ terms of ~~such exchange~~ this Subscription Agreement or ~~system~~this Registration Rights Agreement. The ~~Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with~~ investor retains the ~~Investor~~ right to request additional shares upon the determination the company may not be able to facilitate conversions in the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant heretofuture. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (FTS Apparel Inc), Registration Rights Agreement (Flexxtech Corp)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section ~~2(a)~~2, the Company will ~~effect~~ affect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ 3.1 The Company shall use all commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective ~~within ninety (90) days after the Execution Date~~ and shall keep such Registration Statement effective until the earlier to occur of the date on which (A) the Investor shall have sold all the Registrable ~~Securities~~Securities actually issued or that the Company has an obligation to issue under the Equity Purchase Agreement; or (B) the Investor has no right to acquire any additional shares of Common Stock under the ~~Investment~~ Equity Purchase Agreement (~~hereinafter referred to as~~ the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within ~~seven~~ ten (710) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. ~~(b)~~ 3.2 The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. ~~(c)~~ 3.3 The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time ~~in order~~ to facilitate the disposition of the Registrable Securities. ~~(d)~~ 3.4 The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section ~~3(d)~~3.4, ~~or b.~~ or (B) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. ~~(e)~~ 3.5 As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as~~ “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the ~~Investor:~~ Investor (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; ~~{00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; , (iii) Of of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; , (iv) In in the event the Registration Statement is no longer effective~~; and / or~~ , or (v) If if the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) 3.6 The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. ~~(g)~~ 3.7 The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "“Investor's ’s Delay"”) shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's ’s Delay shall act to suspend all obligations of any ~~{00006670}~~ kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. ~~(h)~~ 3.8 At the request of the Investor, the Company's ’s counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form ~~suitable~~ reasonably acceptable to the Investor. ~~(i)~~ 3.9 The Company shall hold in confidence and not make any disclosure of information concerning the Investor ~~unless:~~ unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. ~~(j)~~ 3.10 The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section ~~3(j)~~3.10. ~~(k)~~ 3.11 The Company shall cooperate with the Investor to facilitate ~~the prompt preparation and~~ electronic delivery of ~~certificates representing~~ the Registrable Securities or if requested by the Investor, the preparation of certificates to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend)~~. {00006670}~~. ~~(l)~~ 3.12 The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. ~~(m)~~ 3.13 If requested by the Investor, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by the Investor. ~~(n)~~ 3.14 The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. ~~(o)~~ 3.15 The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. 3.16 Within two (~~p) Within one (1~~2) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. ~~(q)~~ 3.17 The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Monster Arts Inc.), Registration Rights Agreement (Pazoo, Inc.)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after it is filed with the ~~Execution Date~~ SEC and shall keep such Registration Statement effective until the earlier to occur of (i) the date as of which the Holder may sell all of the Registrable Securities without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto) or (ii) the date on which (A) the ~~Investor~~ Holder shall have sold all the Registrable ~~Securities; or~~ Securities and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “"Registration Period”)") or (iii) 36 months. The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use ~~all commercially reasonable~~ its best efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use ~~all commercially reasonable~~ it's best efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The ~~Investor~~ Holder agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable ~~Securities~~Securities and responses to SEC comments directed to the Holder, and the Company’s 's obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by ~~the~~ a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Network Installation Corp), Registration Rights Agreement (Flexxtech Corp)

RELATED OBLIGATIONS. At such time as the Company is obligated to ~~prepare and~~ file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), 2((b), 2(e) or 2(f), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, ~~with respect~~ pursuant thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall promptly prepare and file with the SEC a Registration Statement with respect to the Registrable Securities and use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective ~~within ninety~~ as soon as practicable after such filing (~~90) days after~~ but in no event later than the ~~Execution Date and~~ Effectiveness Deadline). The Company shall keep each Registration Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of which the Investors may sell all of the Registrable Securities covered by such Registration Statement ~~effective until~~ without the ~~earlier~~ requirement to ~~occur of~~ be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144 (or any successor thereto) promulgated under the 1933 Act or (ii) the date on which ~~(A)~~ the ~~Investor~~ Investors shall have sold all of the Registrable ~~Securities; or~~ Securities covered by such Registration Statement (B) the ~~Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (hereinafter referred to as the “Registration Period”~~"REGISTRATION PERIOD"). The Company shall ensure that each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements ~~therein~~therein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading. The ~~Company~~ term "best efforts" shall ~~use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by~~ mean, the Company~~. The Company shall use all commercially~~ 's reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670} (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with such Registration Statementbest efforts, which ~~prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act~~include among other things, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, that the Company shall ~~amend such Registration Statement~~submit to the SEC, ~~or file a new Registration Statement~~ within two (on 2) Business Days after the ~~short form available therefor, if applicable), or both, so as to cover all~~ later of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at date that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) ~~promptly after~~ the ~~same is prepared and filed with the SEC at least one (1) copy~~ Company learns that no review of ~~such~~ a particular Registration Statement ~~and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein~~ will be made by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC ~~and any correspondence from the SEC~~ or that the staff ~~of the SEC to the Company or its representatives; (ii) upon the effectiveness of any~~ has no further comments on a particular Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as and (ii) the ~~Investor may reasonably~~ approval of Legal Counsel pursuant to Section 3(c) (which approval is immediately sought), a request ~~(and after any sales~~ for acceleration of effectiveness of such ~~Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide~~ Registration Statement to a ~~transfer agent for all the Registrable Securities~~ time and date not later than 48 hours after the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings submission of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investorrequest. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Raptor Networks Technology Inc), Registration Rights Agreement (Raptor Networks Technology Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use all commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of the date on which (A) the Investor shall have sold all the Registrable Securities; or (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as~~ “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the ~~Investor:~~ Investor (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; ~~{00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; , (iii) Of of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; , (iv) In in the event the Registration Statement is no longer effective~~; and / or~~ , or (v) If if the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise.. The Company acknowledges that its failure to cure the Registration Default within ten (10) business days will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties’ good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. It is the intention of the parties that interest payable under any of the terms of this Agreement shall not exceed the maximum amount permitted under any applicable law. If a law, which applies to this Agreement, which sets the maximum interest amount, is finally interpreted so that the interest in connection with this Agreement exceeds the permitted limits, then: (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any ~~{00006670}~~ kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor ~~unless:~~ unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend)~~. {00006670}~~. (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Blackhawk Fund), Registration Rights Agreement (eTwine Holdings, Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use all commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of the date on which (A) the Investor shall have sold all the Registrable Securities; or (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via ~~XXXXX~~EXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as~~ “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the ~~Investor:~~ Investor (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; ~~{00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; , (iii) Of of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; , (iv) In in the event the Registration Statement is no longer effective~~; and / or~~ , or (v) If if the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. . The Company acknowledges that its failure to cure the Registration Default within ten (10) business days will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties’ good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. It is the intention of the parties that interest payable under any of the terms of this Agreement shall not exceed the maximum amount permitted under any applicable law. If a law, which applies to this Agreement, which sets the maximum interest amount, is finally interpreted so that the interest in connection with this Agreement exceeds the permitted limits, then: (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "“Investor's ’s Delay"”) shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's ’s Delay shall act to suspend all obligations of any ~~{00006670}~~ kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's ’s counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor ~~unless:~~ unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section ~~3(j~~30). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend)~~. {00006670}~~. (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Teknik Digital Arts Inc.)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use all commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of the date on which (A) the Investor shall have sold all the Registrable Securities; or (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within ~~seven~~ fourteen (714) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as~~ “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the ~~Investor:~~ Investor (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; ~~{00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; , (iii) Of of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; , (iv) In in the event the Registration Statement is no longer effective~~; and / or~~ , or (v) If if the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise.. The Company acknowledges that its failure to cure the Registration Default, at any time there is an outstanding Put, within ten (10) business days will cause the Investor to suffer damages in an amount that will be difficult to ascertain. The parties agree that it is appropriate to include a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties’ good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. It is the intention of the parties that interest payable under any of the terms of this Agreement shall not exceed the maximum amount permitted under any applicable law. If a law, which applies to this Agreement, which sets the maximum interest amount, is finally interpreted so that the interest in connection with this Agreement exceeds the permitted limits, then: (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any ~~{00006670}~~ kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor ~~unless:~~ unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend)~~. {00006670}~~. (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within ~~one~~ five (15) business ~~day~~ days after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Coates International LTD \De\)

RELATED OBLIGATIONS. At such time as the Company is obligated to ~~prepare and~~ file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a) or 2(e), the Company will use its commercially reasonable best efforts to effect the registration of the Investor Registrable Securities in accordance with the intended method of disposition thereof and, ~~with respect~~ pursuant thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall promptly prepare and file with the SEC a Registration Statement with respect to the Investor Registrable Securities and use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Investor Registrable Securities to become effective ~~within ninety~~ as soon as practicable after such filing (~~90) days after~~ but in the ~~Execution Date and~~ case of the initial Registration Statement required to be filed pursuant to Section 2(a), no later than the Effectiveness Deadline). The Company shall keep each Registration Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of which the Investors may sell all of the Investor Registrable Securities covered by such Registration Statement ~~effective until~~ without restriction pursuant to Rule 144(k) (or any successor thereto) promulgated under the ~~earlier to occur of~~ 1933 Act or (ii) the date on which ~~(A)~~ the ~~Investor~~ Investors shall have sold all ~~the Registrable Securities; or (B)~~ of the Investor ~~has no right to acquire any additional shares of Common Stock under the Investment Agreement~~ Registrable Securities covered by such Registration Statement (~~hereinafter referred to as~~ the “Registration Period”). The Company shall ensure that each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements ~~therein~~therein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading. The term “best efforts” shall mean, among other things, that the Company shall ~~use all commercially reasonable efforts~~ submit to ~~respond~~ the SEC, within two (2) Business Days after the later of the date that (i) the Company learns that no review of a particular Registration Statement will be made by the staff of the SEC or that the staff has no further comments on a particular Registration Statement, as the case may be, and (ii) the approval of Legal Counsel pursuant to ~~all SEC comments within seven~~ Section 3(c) (~~7) business days from receipt~~ which approval is immediately sought), a request for acceleration of effectiveness of such ~~comments by the Company. The Company shall use all commercially reasonable efforts to cause the~~ Registration Statement ~~relating~~ to ~~the Registrable Securities to become effective no~~ a time and date not later than ~~five (5) business days~~ 48 hours after ~~notice from~~ the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt submission of such ~~information. {00006670}~~request. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective at all times (subject to any Allowable Grace Period) during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ seller or sellers thereof as set forth in such Registration Statement. In the ~~event the number~~ case of ~~shares of Common Stock covered by the~~ amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement ~~is at any time insufficient~~ (including pursuant to ~~cover all~~ this Section 3(b)) by reason of the ~~Registrable Securities~~Company filing a report on Form 10-Q or Form 10-QSB, Form 10-K or Form 10-KSB or any analogous report under the Securities Exchange Act of 1934, as amended (the “1934 Act”), the Company shall ~~amend~~ have incorporated such report by reference into such Registration Statement, if applicable, or shall file ~~a new Registration Statement (~~such amendments or supplements with the SEC on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors same day on which the ~~Company reasonably elects to rely), assuming~~ 1934 Act report is filed which created the requirement for the Company ~~has sufficient authorized shares~~ to amend or supplement such Registration Statement. c. The Company shall (A) permit Legal Counsel to review and comment upon (i) a Registration Statement at ~~that time~~least five (5) Business Days prior to its filing with the SEC and (ii) all amendments and supplements to all Registration Statements (except for Annual Reports on Form 10-K or Form 10-KSB, and ~~if it does not~~Quarterly Reports on Form 10-Q or Form 10-QSB and any similar or successor reports) within a reasonable number of days prior to their filing with the SEC, ~~within thirty~~ and (30B) ~~calendar days after such shares are authorized~~not file any Registration Statement or amendment or supplement thereto in a form to which Legal Counsel reasonably objects. The Company shall ~~use commercially reasonable efforts to cause such amendment and/or new~~ not submit a request for acceleration of the effectiveness of a Registration Statement ~~to become effective as soon as practicable following~~ or any amendment or supplement thereto without the ~~filing thereof. (c)~~ prior approval of Legal Counsel, which consent shall not be unreasonably withheld. The Company shall ~~make available~~ furnish to ~~the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel~~ Legal Counsel, without charge: , (i) ~~promptly after the same is prepared and filed with the SEC at least one (1) copy~~ copies of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from ~~the SEC or~~ the staff of the SEC to the Company or its ~~representatives; (ii) upon the effectiveness of~~ representatives relating to any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.,

Appears in 1 contract

Samples: Registration Rights Agreement (Mohen, Inc.)

RELATED OBLIGATIONS. At such time as the Company is obligated to ~~prepare and~~ file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, ~~with respect~~ pursuant thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall promptly prepare and file with the SEC a Registration Statement with respect to the Registrable Securities (on or prior to the thirtieth (30th) day after the date of issuance of the Registrable Securities) and use ~~all commercially reasonable~~ its best efforts to cause such Registration ~~Statement~~ Statement(s) relating to ~~the~~ Registrable Securities to become effective as soon as possible after such filing (within ~~ninety~~ one hundred twenty (90120) days after the ~~Execution Date~~ issuance of the Registrable Securities) pursuant to Section 2(a)), and ~~shall~~ keep ~~such~~ the Registration ~~Statement~~ Statement(s) effective pursuant to Rule 415 at all times until the earlier of (i) the date as of which the Investors may sell all of the Registrable Securities without restriction pursuant to ~~occur of~~ Rule 144(k) promulgated under the 1933 Act (or successor rule thereto) or (ii) the date on which (A) the ~~Investor~~ Investors shall have sold all the Registrable ~~Securities; or~~ Securities and (B) none of the ~~Investor has no right to acquire any additional shares of Common Stock under~~ Series A Preferred Shares is outstanding (the ~~Investment Agreement (hereinafter referred to as the “~~"REGISTRATION PERIOD"), which Registration ~~Period”). The Registration Statement~~ Statement(s) (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration ~~Statement~~ Statement(s) and the ~~prospectus~~ prospectus(es) used in connection with ~~such~~ the Registration ~~Statement~~Statement(s), which ~~prospectus is~~ prospectus(es) are to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep ~~such~~ the Registration ~~Statement~~ Statement(s) effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by ~~such~~ the Registration ~~Statement~~ Statement(s) until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ seller or sellers thereof as set forth in ~~such~~ the Registration ~~Statement~~Statement(s). In the event the number of shares ~~of Common Stock covered by the~~ available under a Registration Statement filed pursuant to this Agreement is ~~at any time~~ insufficient to cover all of the Registrable Securities, the Company shall amend ~~such~~ the Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within ~~thirty~~ fifteen (3015) ~~calendar~~ days after the necessity therefor arises (based on the ~~then Purchase Price~~ market price of the Common Stock and other relevant factors on which the Company reasonably elects to rely)~~, assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized~~. The Company shall use ~~commercially reasonable~~ it best efforts to cause such 4 amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. For purposes of the foregoing provision, the number of shares available under a Registration Statement shall be deemed "insufficient to cover all of the Registrable Securities" if at any time the number of Registrable Securities issued or issuable upon conversion of the Series A Preferred Shares is greater than the quotient determined by dividing (i) the number of shares of Common Stock available for resale under such Registration Statement by (ii) 1.50. For purposes of the calculation set forth in the foregoing sentence, any restrictions on the convertibility of the Series A Preferred Shares shall be disregarded and such calculation shall assume that the Series A Preferred Shares are then convertible into shares of Common Stock at the then prevailing Conversion Rate (as defined in the Company's Certificate of Designations). ~~(c)~~ c. The Company shall ~~make available~~ furnish to ~~the~~ each Investor whose Registrable Securities are included in ~~any~~ the Registration ~~Statement~~ Statement(s) and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one ~~(1)~~ copy of ~~such~~ the Registration Statement and any ~~amendment(s)~~ amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the ~~prospectus~~ prospectus(es) included in such Registration ~~Statement~~ Statement(s) (including each preliminary prospectus) and, with regards to ~~such~~ the Registration ~~Statement(s)~~Statement, any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; , (ii) upon the effectiveness of any Registration Statement, ~~the Company shall make available~~ ten (10) copies of the ~~prospectus, via XXXXX,~~ prospectus included in such Registration Statement and all amendments and supplements ~~thereto; and~~ thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents, including ~~copies of~~ any preliminary ~~or final~~ prospectus, as ~~the~~ such Investor may reasonably request ~~from time to time~~ in order to facilitate the disposition of the Registrable ~~Securities~~Securities owned by such Investor. ~~(d)~~ d. The Company shall use ~~commercially~~ reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by the Registration ~~Statement~~ Statement(s) under such other securities or “"blue sky” " laws of such ~~states~~ jurisdictions in the United States as ~~the~~ any Investor reasonably requests~~; {00006670}~~ , (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; , (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify ~~the~~ each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “"blue sky” " laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. ~~(e)~~ e. In the event Investors who hold a majority of the Registrable Securities covered hereby select underwriters for the offering, the Company shall enter into and perform its obligations under an underwriting agreement, in usual and customary form, including, 5 without limitation, customary indemnification and contribution obligations, with the underwriters of such offering. f. As promptly as practicable after becoming aware of such event, the Company shall notify each Investor in writing of the happening of any ~~event~~ event, of which the Company has knowledge, as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (hereinafter referred to as “Registration Default”)~~ misleading, and ~~use all diligent efforts to~~ promptly prepare a supplement or amendment to ~~such~~ the Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and ~~make available~~ deliver ten (10) copies of such supplement or amendment to ~~the Investor~~each Investor (or such other number of copies as such Investor may reasonably request). The Company shall also promptly notify ~~the Investor:~~ each Investor in writing (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (~~the Company will prepare~~ notification of such effectiveness ~~which~~ shall be delivered to ~~the~~ each Investor by facsimile on the same day of such effectiveness and by overnight mail), ~~additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , and (iii) Of of the Company’s 's reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) g. The Company shall use ~~all commercially reasonable~~ its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify ~~the~~ each Investor ~~holding~~ who holds Registrable Securities being sold (and, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. ~~(g)~~ h. The Company shall permit ~~the~~ each Investor and ~~one (1) legal~~ a single firm of counsel, initially Schuxxx Xxxh & Xabex XXX or such other counsel as thereafter designated as selling stockholders' counsel by the ~~Investor~~Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration ~~Statement~~ Statement(s) and all amendments and supplements thereto at least ~~one~~ seven (17) ~~calendar day~~ days prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects. ~~However, any postponement of a filing of a Registration Statement or any postponement of~~ The Company shall not submit a request for acceleration ~~or any postponement~~ of the ~~effective date or~~ effectiveness of a Registration ~~Statement by written request~~ Statement(s) or any amendment or supplement thereto without the prior approval of ~~the Investor (collectively~~such counsel, ~~the "Investor's Delay")~~ which consent shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investorbe unreasonably withheld. ~~(h)~~ i. At the request of the ~~Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness~~ Investors who hold a majority of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities ~~covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts~~being sold, the Company ~~is unsuccessful in satisfying~~ shall furnish, on the ~~preceding sentence, it shall use commercially reasonable efforts to cause all the~~ date that Registrable Securities ~~covered by any Registration Statement~~ are delivered to ~~be listed on each other national securities exchange and automated quotation system~~an underwriter, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses for sale in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) ~~As soon~~ if required by an underwriter, a letter, dated such date, from the Company's independent certified public accountants in form and substance as ~~reasonably practical incorporate~~ is customarily given by independent certified public accountants to underwriters in ~~a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating~~ an underwritten public offering, addressed to the ~~sale~~ underwriters, and ~~distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering;~~ (ii) ~~Make all required filings~~ an opinion, dated as of such ~~prospectus supplement or post-effective amendment as soon as reasonably possible after being notified~~ date, of counsel representing the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition for purposes of such ~~Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules~~ Registration Statement, in form, scope and ~~regulations of the SEC~~ substance as is customarily given in ~~connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC~~an underwritten public offering, ~~the Company shall deliver~~ addressed to the ~~transfer agent for such Registrable Securities, with copies to~~ underwriters and the ~~Investor, confirmation that such Registration Statement has been declared effective by the SEC~~Investors. ~~(q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.~~

Appears in 1 contract

Samples: Registration Rights Agreement (Telular Corp)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use all commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ~~ninety~~ one hundred and twenty (90120) days after the ~~Execution~~ Filing Date and shall keep such Registration Statement effective until the earlier to occur of the date on which (A) the Investor shall have sold all the Registrable Securities; or (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as~~ “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the ~~Investor:~~ Investor (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; ~~{00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; , (iii) Of of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; , (iv) In in the event the Registration Statement is no longer effective~~; and / or~~ , or (v) If if the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise.. The Company acknowledges that its failure to cure the Registration Default within ten (10) business days will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties’ good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. It is the intention of the parties that interest payable under any of the terms of this Agreement shall not exceed the maximum amount permitted under any applicable law. If a law, which applies to this Agreement, which sets the maximum interest amount, is finally interpreted so that the interest in connection with this Agreement exceeds the permitted limits, then: (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. ~~However~~Notwithstanding anything to the contrary contained herein, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any ~~{00006670}~~ kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor ~~unless:~~ unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each ~~other~~ the national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend)~~. {00006670}~~. (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, and subject to approval by Company counsel, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within ~~one~~ three (13) business ~~day~~ days after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. ~~(q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.~~

Appears in 1 contract

Samples: Registration Rights Agreement (Sunrise Energy Resources Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to ~~prepare and~~ file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a) or 2(c), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, ~~with respect~~ pursuant thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall promptly prepare and file with the SEC a Registration Statement with respect to the Registrable Securities (on or prior to the Scheduled Filing Date) for the registration of Registrable Securities pursuant to Section 2(a) and use ~~all commercially reasonable~~ its best efforts to cause such Registration ~~Statement~~ Statements relating to the Registrable Securities to become effective ~~within ninety~~ as soon as possible after such filing (90but, in no event later than one hundred twenty (120) days after the ~~Execution Date~~ initial Closing Date). The Company shall not file any other Registration Statement with respect to any of its securities between the date hereof and ~~shall keep~~ the filing date of such Registration Statement (other than a Registration Statement on Form S-8 (or its equivalent at such time)). The Company shall keep the Registration Statement required to be filed hereunder effective pursuant to Rule 415 at all times until the earlier of (i) the date as of which the Investors may sell all of the Registrable Securities covered by such Registration Statement without restriction pursuant to ~~occur of~~ Rule 144(k) promulgated under the Securities Act (or successor thereto) or (ii) the date on which (A) the ~~Investor~~ Investors shall have sold all the Registrable ~~Securities; or~~ Securities covered by such Registration Statement and (B) none of the ~~Investor has no right to acquire any additional shares of Common Stock under~~ Convertible Note or Warrants is outstanding (the ~~Investment Agreement (hereinafter referred to as the “Registration Period”~~"REGISTRATION PERIOD")~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The term "best efforts" shall mean, among other things, that the Company shall ~~use all commercially reasonable efforts~~ submit to ~~respond to all SEC comments~~ the SEC, within ~~seven (7)~~ three business days ~~from receipt~~ after the Company learns that no review of a particular Registration Statement will be made by the staff of the SEC or that the staff has no further comments on the Registration Statement, as the case may be, a request for acceleration of effectiveness of such ~~comments by~~ Registration Statement to a time and date not later than 48 hours after the ~~Company~~submission of such request. The Company shall ~~use all commercially reasonable efforts~~ not cause any other registration statement of the Company to ~~cause~~ be declared effective by the SEC prior to the earlier of (i) the 45th day after the Registration Statement ~~relating to the Registrable Securities to become~~ is declared effective ~~no later than five (5) business days after notice from~~ by the SEC ~~that~~ and (ii) the ~~Registration Statement may be declared effective. The Investor agrees to provide~~ sale of all ~~information which it is required by law to provide to the Company, including the intended method of disposition~~ of the Registrable Securities~~, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}~~. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the ~~1933~~ Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the ~~1933~~ Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ seller or sellers thereof as set forth in such Registration Statement. In the ~~event the number~~ case of ~~shares of Common Stock covered by the~~ amendments and supplements to a Registration Statement that are required to be filed pursuant to this Agreement ~~is at any time insufficient~~ (including pursuant to ~~cover all~~ this Section 3(b)) by reason of the ~~Registrable Securities~~Company filing a report on Form 10-KSB, Form 10-QSB or Form 8-K or any analogous report under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), the Company shall ~~amend~~ file such ~~Registration Statement,~~ amendments or ~~file a new Registration Statement (~~supplements with the SEC on the ~~short form available therefor, if applicable),~~ same day or ~~both, so as to cover all of the Registrable Securities, in each case,~~ as soon as ~~practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors~~ practicably thereafter on which the ~~Company reasonably elects to rely), assuming~~ Exchange Act report is filed that created the requirement for the Company ~~has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized.~~ to amend or supplement the Registration Statement. c. The Company shall use ~~commercially~~ reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by ~~the~~ a Registration Statement under such other securities or “"blue sky” " laws of such ~~states~~ jurisdictions in the United States ~~as the~~ any Investor reasonably requests~~; {00006670}~~ , (ii) prepare and file in those ~~jurisdictions,~~ jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; , (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section ~~3(d~~3(c), ~~or b.~~ (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify ~~the~~ each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “"blue sky” " laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. ~~(e)~~ d. As promptly as practicable after becoming aware of such event, the Company shall notify each Investor in writing of the happening of any event as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or ~~omission~~ omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (hereinafter referred to as “Registration Default”)~~ misleading, and ~~use all diligent efforts to~~ promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and ~~make available copies~~ deliver a copy of such supplement or amendment to ~~the Investor~~each Investor (or such other number of copies as such Investor may reasonably request). The Company shall also promptly notify ~~the Investor:~~ each Investor in writing (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (~~the Company will prepare~~ notification of such effectiveness ~~which~~ shall be delivered to ~~the~~ each Investor by facsimile on the same day of such effectiveness and by overnight mail), ~~additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , and (iii) Of of the Company’s 's reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) e. The Company shall use ~~all commercially reasonable~~ its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify ~~the~~ each Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) f. The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the ~~Investor unless:~~ Company unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with ~~federal~~ Federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning ~~the~~ an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to ~~the~~ such Investor and allow ~~the~~ such Investor, at the Investor’s 's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order ~~covering~~ for, such information. ~~(j)~~ g. The Company shall use ~~all commercially reasonable~~ its best efforts either to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to (i) cause all the Registrable Securities covered by ~~any~~ a Registration Statement to be listed on each ~~other national~~ securities exchange ~~and automated quotation system, if any,~~ on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such ~~exchange~~ exchange, (ii) secure the designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq SmallCap Market, or ~~system~~(iii) secure the inclusion for quotation on the over-the-counter market on the electronic bulletin board for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section ~~3(j~~3(g). ~~(k)~~ h. The Company shall cooperate with the ~~Investor~~ Investors who hold Registrable Securities being offered and, to the extent applicable to facilitate the ~~prompt~~ timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the ~~case may be, as the Investor~~ Investors may reasonably request (and ~~after any sales of~~ registered in such ~~Registrable Securities by~~ names as the ~~Investor, such certificates not bearing any restrictive legend). {00006670}~~Investors may request. ~~(l)~~ i. The Company shall provide a transfer agent ~~for~~ and registrar of all ~~the~~ such Registrable Securities not later than the effective date of ~~the first~~ such Registration ~~Statement filed pursuant hereto~~Statement. ~~(m)~~ j. If requested by ~~the~~ an Investor, the Company ~~shall:~~ shall (i) ~~As soon as reasonably practical~~ promptly incorporate in a prospectus supplement or post-effective amendment such information as the ~~Investor reasonably determines~~ Investors agree should be included therein relating to the sale and distribution of Registrable Securities~~, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering;~~ ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as ~~reasonably possible after being~~ notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if ~~reasonably~~ requested by ~~the Investor~~an Investor of such Registrable Securities. ~~(n)~~ k. The Company shall use ~~all commercially reasonable~~ its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to ~~facilitate~~ consummate the disposition of such Registrable Securities. l. The Company shall make generally available to its security holders as soon as practical, but not later than 90 days after the close of the period covered thereby, an earnings statement (oin form complying with the provisions of Rule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of the Registration Statement. m. The Company shall otherwise use ~~all commercially reasonable~~ its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. n. Within seven (~~p) Within one (1~~7) business ~~day~~ days after ~~the~~ a Registration Statement ~~which includes~~ that covers applicable Registrable Securities is ~~declared~~ ordered effective by the SEC, the Company shall ~~deliver~~ deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable ~~Securities,~~ Securities (with copies to the ~~Investor,~~ Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the ~~SEC.~~SEC in the form attached hereto as Exhibit A. ~~(q)~~ o. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the ~~Investor~~ Investors of Registrable Securities pursuant to a Registration Statement. p. Notwithstanding anything to the contrary in Section 3(g), at any time after the Registration Statement has been declared effective, the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company and its counsel, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (a "GRACE PERIOD"); provided, that the Company shall promptly (i) notify the Investors in writing of the existence of material, non-public information giving rise to a Grace Period and the date on which the Grace Period will begin, and (ii) notify the Investors in writing of the date on which the Grace Period ends; and, provided further, that during any consecutive 365-day period, there shall be only one Grace Period, such Grace Period not to exceed 30 days in the aggregate (an "ALLOWABLE GRACE PERIOD"). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Investor receives the notice referred to in clause (i) above and shall end on and include the date the Investor receive the notice referred to in clause (ii) above. During the length of any Grace Period, the Investors will continue to be able to convert their Convertible Note into Common Stock but shall not be able to sell the Conversion Shares. Upon expiration of the Allowable Grace Period, the Company shall again be bound by the first sentence of Section 3(g) with respect to the information giving rise thereto. q. Each of the following events shall constitute a "REGISTRATION DEFAULT" for purposes of this Agreement: (i) the SEC's failure to declare a Registration Statement effective on or before the Scheduled Effective Date or Additional Scheduled Effective Date thereof, as appropriate, except where the failure to meet such deadline is the result solely of actions by the holders of Registrable Securities; (ii) after conversion by an Investor, the Investor's inability to sell all Registrable Securities pursuant to an effective Registration Statement (whether because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement., to register sufficient shares of Common Stock or otherwise); or (iii) after conversion by an Investor, the Investor's inability to sell all Registrable Securities pursuant to an effective Registration Statement because the aggregate days of Grace Period exceed the Allowable Grace Period. Upon the occurrence of a Registration Default specified in clause (ii), the Company shall pay the Investor an amount determined in accordance with the following formula for each month (pro-rated for partial months) of such Registration Default:

Appears in 1 contract

Samples: Registration Rights Agreement (Cdknet Com Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ~~ninety~~ one hundred twenty (90120) days after the ~~Execution Date~~ date of the filing thereof, and shall keep such Registration Statement effective pursuant to Rule 415 until the earlier of (i) the date as of which the Holders may sell all of the Registrable Securities without restriction pursuant to ~~occur of~~ Rule 144(k) promulgated under the 1933 Act (or successor thereto) or (ii) the date on which (A) the ~~Investor~~ Holders shall have sold all the Registrable Securities~~; or~~ , and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment ~~Agreement~~ Agreement, respectively (~~hereinafter referred to as~~ the “"Registration Period”")~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ seller or sellers thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock ~~covered by the~~ available under a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. ~~(c)~~ c. The Company shall ~~make available~~ furnish to ~~the Investor~~ each Holder whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, ~~the Company shall make available~~ ten (10) copies of the ~~prospectus, via XXXXX,~~ prospectus included in such Registration Statement and all amendments and supplements ~~thereto; and~~ thereto (~~iii~~or such other number of copies as such Holder may reasonably request) and (ii) such other documents, including copies of any ~~preliminary or~~ final prospectus, as ~~the Investor~~ such Holder may reasonably request from time to time in order to facilitate the disposition of the Registrable ~~Securities~~Securities owned by such Holder. ~~(d)~~ d. The Company shall use ~~commercially~~ reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by ~~the~~ a Registration Statement under such other securities or “"blue sky” " laws of such states in the United States as ~~the Investor~~ any Holder reasonably requests~~; {00006670}~~ , (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; , (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify ~~the Investor~~ each Holder who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “"blue sky” " laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. ~~(e)~~ e. As promptly as practicable after becoming aware of such event, the Company shall notify ~~Investor~~ each Holder in writing of the happening of any event as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading, (~~hereinafter referred to as “~~"Registration Default”") and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration ~~Default~~ Default, (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and ~~make available~~ deliver ten (10) copies of such supplement or amendment to ~~the Investor~~each Holder (or such other number of copies as such Holder may reasonably request). The Company shall also promptly notify ~~the Investor:~~ each Holder in writing (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (~~the Company will prepare~~ notification of such effectiveness ~~which~~ shall be delivered to ~~the Investor~~ each Holder by facsimile on the same day of such effectiveness and by overnight mail), ~~additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , and (iii) Of of the Company’s 's reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) f. The Company shall use ~~all commercially reasonable~~ its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify ~~the Investor holding~~ each Holder who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. ~~(g)~~ g. The Company shall permit ~~the Investor~~ each Holder and ~~one (1) legal~~ a single firm of counsel, designated as selling shareholders' counsel by the ~~Investor~~Holders who hold a majority of the Registrable Securities being sold, to review and comment upon ~~the~~ a Registration Statement and all amendments and supplements thereto at least ~~one~~ three (13) ~~calendar day~~ business days prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects. ~~However, any postponement~~ The Company shall not submit to the SEC a request for acceleration of ~~a filing~~ the effectiveness of a Registration Statement or ~~any postponement of a request for acceleration or any postponement of~~ file with the ~~effective date or effectiveness of~~ SEC a Registration Statement ~~by written request~~ or any amendment or supplement thereto without the prior approval of ~~the Investor (collectively~~such counsel, ~~the "Investor's Delay")~~ which approval shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investorbe unreasonably withheld. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Booktech Com Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ~~ninety~~ one hundred ten (90110) calendar days after the ~~Execution Date~~ date and shall keep such Registration Statement effective pursuant to Rule 415 until the earlier of (i) the date as of which the Investor may sell all of the Registrable Securities without restriction pursuant to ~~occur of~~ Rule 144(k) promulgated under the 1933 Act or (ii) the date on which (A) the Investor shall have sold all the Registrable ~~Securities; or~~ Securities and (B) the Investor has no right to ~~acquire any additional shares of~~ convert the Shares it owns into Common Stock under the ~~Investment~~ Subscription Agreement respectively (~~hereinafter referred to as~~ the “"Registration Period”")~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall ~~use all commercially reasonable efforts to~~ respond to all SEC comments within seven (7) business days ~~from~~ of receipt ~~of such comments~~ by the Company. If the Company fails to respond within seven (7) business days of receipt of SEC comments, the Company shall pay to the Investor a cash amount within three (3) business days of the end of the month equal to 2% per month, on a pro rata basis, of the amount paid to purchase the Debentures then outstanding, as liquidated damages and not as a penalty; provided that the seven (7) business day period provided herein shall be extended as may be required by delays caused by Holders’ counsel pursuant to paragraph 3g below, and, provided further, that such seven (7) business day period shall be extended five (5) business days for responses to SEC staff accounting comments. The Company shall ~~use all commercially reasonable efforts to~~ cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock ~~covered by the~~ available under a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof~~. (c) The Company shall make~~ . Prior to conversion of all the Shares, if at any time the conversion of all the Shares outstanding would result in an insufficient number of authorized shares of Common Stock being available to cover all the ~~Investor whose Registrable Securities are included~~ conversions, then in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company will move to call and hold a shareholder’s meeting within thirty (30) calendar days of such event for the sole purpose of authorizing additional shares of Common Stock to facilitate the conversions. In such an event the Company shall ~~notify Investor in writing~~ recommend to all shareholders and management of the ~~happening~~ Company to vote their shares in favor of ~~any event as a result~~ increasing the authorized number of ~~which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement~~ shares of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the InvestorCommon Stock. The Company ~~shall also promptly notify~~ represents and warrants that under no circumstances will it deny or prevent Purchaser’s right to convert the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale Shares as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the ~~rules~~ terms of ~~such exchange~~ this Subscription Agreement or ~~system. The Company shall pay all fees and expenses in connection with satisfying its obligation under~~ this ~~Section 3(j)~~Registration Rights Agreement. (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Virtra Systems Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use ~~all~~ commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ~~ninety (90)~~ 110 days after the ~~Execution~~ Filing Date and shall keep such Registration Statement effective until the earlier to occur of (i) the date on which (A) the Investor shall have sold all the Registrable Securities; or and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use ~~all commercially reasonable~~ its best efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use ~~all commercially reasonable~~ its best efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by ~~the~~ a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by ~~the~~ a Registration Statement under such other securities or “blue sky” laws of such states in the United States as ~~the~~ any Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify ~~the~~ each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as~~ “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration ~~Default~~ Default, (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to ~~the~~ each Investor. The Company shall also promptly notify ~~the Investor:~~ Investor (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; ~~{00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , (iii) Of of the Company’s reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; , (iv) In in the event the Registration Statement is no longer effective~~; and / or~~ , or (v) ~~If the~~ if Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise.. The Company acknowledges that its failure to cure the Registration Default within ten (10) business days will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties’ good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. It is the intention of the parties that interest payable under any of the terms of this Agreement shall not exceed the maximum amount permitted under any applicable law. If a law, which applies to this Agreement which sets the maximum interest amount, is finally interpreted so that the interest in connection with this Agreement exceeds the permitted limits, then: (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. In case any provision of this Agreement is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, and the validity and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. (f) The Company shall use ~~all~~ commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon ~~the~~ a Registration Statement and all amendments and supplements thereto at least ~~one~~ seven (17) ~~calendar day~~ business days prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects. ~~However~~The Company may request to shorten the Investor’s review period and the Investor will, ~~any postponement~~ if possible, attempt to comply with the accelerated review period. The Company shall not submit to the SEC a request for acceleration of ~~a filing~~ the effectiveness of a Registration Statement or ~~any postponement of a request for acceleration or any postponement of~~ file with the ~~effective date or effectiveness of~~ SEC a Registration Statement ~~by written request~~ or any amendment or supplement thereto without the prior approval of such counsel or the ~~Investor (collectively~~Investor, ~~the "Investor's Delay")~~ which approval shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investorbe unreasonably withheld. (h) At the request of the Investor, the ~~Company's counsel~~ Company shall ~~furnish~~ cause to ~~the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall~~ be ~~issued as of~~ furnished to Investor, on the date of the effectiveness of a Registration Statement, a legal opinion, in form and substance reasonably acceptable to Investor’s counsel, dated as of such date, of counsel representing the ~~registration statement and be in a form suitable to the Investor~~Company for purposes of such Registration Statement. (i) The Company shall hold in confidence and not make any disclosure of information concerning a Investor provided to the ~~Investor unless:~~ Company unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning ~~the~~ a Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to ~~the~~ such Investor and allow ~~the~~ such Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order ~~covering~~ for, such information. (j) The Company shall use ~~all~~ commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s ~~commercially reasonable~~ best efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably ~~request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670}~~request. (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as ~~the~~ such Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by ~~the~~ such Investor. (n) The Company shall use ~~all~~ commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to ~~facilitate~~ consummate the disposition of such Registrable Securities. (o) The Company shall otherwise use ~~all~~ commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to ~~the~~ a Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Virtra Systems Inc)

Appears in 1 contract

Samples: Registration Rights Agreement (Energie Holdings, Inc.)

RELATED OBLIGATIONS. At Whenever an Investor has requested that any Registrable Securities be registered pursuant to Section 2(c) or at such time as the Company is obligated to ~~prepare and~~ file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, ~~with respect~~ pursuant thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall promptly prepare and file with the SEC a Registration Statement with respect to the Registrable Securities (on or prior to the forty-fifth (45th) day following the date of issuance of any Preferred Stock, for the registration of Registrable Securities pursuant to Section 2(a)) and use ~~all commercially reasonable~~ its best efforts to cause such Registration ~~Statement~~ Statement(s) relating to ~~the~~ Registrable Securities to become effective ~~within ninety~~ as soon as possible after such filing (90by the ninetieth (90th) ~~days after~~ day following the ~~Execution Date~~ issuance of the relevant Preferred Stock for the registration of Registrable Securities pursuant to Section 2(a), and ~~shall~~ keep ~~such~~ the Registration ~~Statement~~ Statement(s) effective pursuant to Rule 415 at all times until the earlier of (i) the date as of which the Investors may sell all of the Registrable Securities without restriction pursuant to ~~occur of~~ Rule 144(k) promulgated under the 1933 Act (or successor thereto) or (ii) the date on which (A) the ~~Investor~~ Investors shall have sold all the Registrable ~~Securities; or~~ Securities and (B) none of the ~~Investor has no right to acquire any additional shares of Common~~ Preferred Stock ~~under~~ is outstanding (the ~~Investment Agreement (hereinafter referred to as the “~~"Registration Period”")~~. The~~ , which Registration ~~Statement~~ Statement(s) (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration ~~Statement~~ Statement(s) and the ~~prospectus~~ prospectus(es) used in connection with ~~such~~ the Registration ~~Statement~~Statement(s), which ~~prospectus is~~ prospectus(es) are to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep ~~such~~ the Registration ~~Statement~~ Statement(s) effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by ~~such~~ the Registration ~~Statement~~ Statement(s) until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ seller or sellers thereof as set forth in ~~such~~ the Registration ~~Statement~~Statement(s). In the event the number of shares ~~of Common Stock covered by the~~ available under a Registration Statement filed pursuant to this Agreement is ~~at any time~~ insufficient to cover all of the Registrable Securities, the Company shall amend ~~such~~ the Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within ~~thirty~~ fifteen (3015) ~~calendar~~ days after the necessity therefor arises (based on the ~~then Purchase Price~~ market price of the Common Stock and other relevant factors on which the Company reasonably elects to rely)~~, assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized~~. The Company shall use ~~commercially reasonable~~ its 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 the foregoing provision, the number of shares available under a Registration Statement shall be deemed "insufficient to cover all of the Registrable Securities" if at any time the number of Registrable Securities issued or issuable upon conversion of the Preferred Stock is greater than the quotient determined by dividing (i) the number of shares of Common Stock available for resale under such Registration Statement by (ii) 1.5; provided that in the case of the initial registration of the Registrable Securities pursuant to Section 2(a), the Company shall be required to register at least _______ shares of Common Stock for resale. For purposes of the calculation set forth in the foregoing sentence, any restrictions on the convertibility of the Preferred Stock shall be disregarded and such calculation shall assume that the Preferred Stock are then convertible into shares of Common Stock at the then prevailing Conversion Rate (as defined in the Preferred Stock). ~~(c)~~ c. The Company shall ~~make available~~ furnish to ~~the~~ each Investor whose Registrable Securities are included in ~~any~~ the Registration ~~Statement~~ Statement(s) and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one ~~(1)~~ copy of ~~such~~ the Registration Statement and any ~~amendment(s)~~ amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the ~~prospectus~~ prospectus(es) included in such Registration ~~Statement~~ Statement(s) (including each preliminary ~~prospectus~~prospectus ) and, with regards to ~~such~~ the Registration ~~Statement(s)~~Statement, any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; , (ii) upon the effectiveness of any Registration Statement, ~~the Company shall make available~~ ten (10) copies of the ~~prospectus, via XXXXX,~~ prospectus included in such Registration Statement and all amendments and supplements ~~thereto; and~~ thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents, including ~~copies of~~ any preliminary ~~or final~~ prospectus, as ~~the~~ such Investor may reasonably request ~~from time to time~~ in order to facilitate the disposition of the Registrable ~~Securities~~Securities owned by such Investor. ~~(d)~~ d. The Company shall use ~~commercially~~ reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by the Registration ~~Statement~~ Statement(s) under such other securities or “"blue sky” " laws of such ~~states~~ jurisdictions in the United States as ~~the~~ any Investor reasonably requests~~; {00006670}~~ , (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; , (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to ~~qualify~~ quality the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (a) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ (b) subject itself to general taxation in any such jurisdiction, or (c) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify ~~the~~ each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “"blue sky” " laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. ~~(e)~~ e. In the event Investors who hold a majority of the Registrable Securities being offered in the offering select underwriters for the offering, the Company shall enter into and perform its obligations under an underwriting agreement, in usual and customary form, including, without limitation, customary indemnification and contribution obligations, with the underwriters of such offering. f. As promptly as practicable after becoming aware of such event, the Company shall notify each Investor in writing of the happening of any ~~event~~ event, of which the Company has knowledge, as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (hereinafter referred to as “Registration Default”)~~ misleading, and ~~use all diligent efforts to~~ promptly prepare a supplement or amendment to ~~such~~ the Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and ~~make available~~ deliver ten (10) copies of such supplement or amendment to ~~the Investor~~each Investor (or such other number of copies as such Investor may reasonably request). The Company shall also promptly notify ~~the Investor:~~ each Investor in writing (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (~~the Company will prepare~~ notification of such effectiveness ~~which~~ shall be delivered to ~~the~~ each Investor by facsimile on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.by

Appears in 1 contract

Samples: Registration Rights Agreement (Eat at Joes LTD)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ~~ninety~~ one hundred and thirty-five (90135) calendar days after the ~~Execution~~ Closing Date and shall keep such Registration Statement effective pursuant to Rule 415 until ~~the earlier to occur of~~ the date on which (A) the ~~Investor~~ Holder shall have sold all the Registrable Securities or the shares included therein otherwise cease to be Registrable Securities~~; or~~ , and (B) the ~~Investor~~ Holder has no right to ~~acquire any additional shares of~~ convert the securities it owns into Common Stock under the ~~Investment~~ Subscription Agreement, Debenture Agreement or Warrant Agreement, respectively (~~hereinafter referred to as~~ the “"Registration Period”")~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) ~~shall~~ shall, as of the date thereof, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall ~~use~~ respond to any and all ~~commercially reasonable efforts~~ SEC comments or correspondence, whether written or oral, direct or indirect, formal or informal ("Comments"), within twenty-one (21) calendar days of receipt by the Company of such Comments, the date of any such Comments shall be determined by the SEC's date of the comment letter, for the initial comment round received by the SEC. For each subsequent comment letter received by the Company from the SEC, the Company agrees to respond to all ~~SEC comments~~ Comments within ~~seven~~ fourteen (714) calendar days. If the Company fails to respond within fourteen (14) business days ~~from~~ of receipt of SEC Comments, the Company shall pay to the Holder an amount equal to two percent (2%) per month, on a pro rata basis, compounded daily, of the Face Amount as liquidated damages and not as a penalty, until such ~~comments~~ response is submitted; provided that the fourteen (14) business day period provided herein shall be extended as may be required by ~~the Company~~delays caused by Holder's counsel pursuant to paragraph 3(g) below, and, provided further, that such fourteen (14) business day period shall be extended two (2) business days for responses to SEC staff accounting comments. The Company shall ~~use all commercially reasonable efforts to~~ cause the Registration Statement relating to the Registrable Securities to become effective by filing the letter requesting acceleration of effectiveness no later than ~~five~~ two (52) business days after notice from the SEC that the Registration Statement ~~may be declared effective~~has been cleared of all comments. ~~The Investor agrees~~ Failure to ~~provide all information which it is required by law to provide to~~ do so will result in the ~~Company, including the intended method of disposition~~ Face Amount of the ~~Registrable Securities~~Debentures to be increased, ~~and~~ as liquidated damages, by five percent (5%) per calendar day for each day that the ~~Company’s obligations set forth above shall be conditioned on~~ Company does not request acceleration for effectiveness from the ~~receipt of such information. {00006670}~~SEC. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor thereof~~ Holder as set forth in such Registration Statement. In the event the number of shares of Common Stock ~~covered by the~~ available under a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. . Prior to conversion of all the Debentures, if at any time the conversion of all the Debentures outstanding would result in an insufficient number of authorized shares of Common Stock being available to cover all the conversions, or in the event that Holder deems that the Shares authorized will become insufficient, the Company will move to call and hold a shareholder's meeting within thirty (c30) ~~The~~ calendar days for the sole purpose of authorizing additional shares of Common Stock to facilitate the conversions. In such an event the Company shall ~~make available~~ recommend to ~~the Investor whose Registrable Securities are included in any Registration Statement~~ all shareholders and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf management of the Company to vote their shares in favor of increasing the ~~SEC or~~ authorized number of shares of Common Stock in sufficient number to fully cover the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdictionHolder's conversion rights. The Company ~~shall promptly notify~~ represents and warrants that under no circumstances will it deny or prevent Holder's right to convert the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly Debentures as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the ~~rules~~ terms of ~~such exchange~~ the Subscription Agreement or ~~system~~the Debenture Registration Rights Agreement. The ~~Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with~~ Holder retains the ~~Investor~~ right to request additional shares upon the determination the company may not be able to facilitate conversions in the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant heretofuture. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Debenture Registration Rights Agreement (Simplagene Usa Inc)

RELATED OBLIGATIONS. At Whenever an Investor has requested that any Registrable Securities be registered pursuant to Section 2(c) hereof, or at such time as the Company is obligated to ~~prepare and~~ file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a)) hereof, the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the ~~intended~~ respective method of disposition thereof as required by such provisions and, ~~with respect~~ pursuant thereto, and the Company shall have the following obligations: (a) The Company shall promptly prepare and file with the SEC a Registration Statement with respect to the Registrable Securities within the time provided in Section 2(a) for the registration of Registrable Securities pursuant to Section 2(a) or Section 2(c), if applicable, and use ~~all commercially reasonable~~ its best efforts to cause such Registration ~~Statement~~ Statement(s) relating to ~~the~~ Registrable Securities to become effective as soon as possible after such filing and in any event within sixty (60) days after filing with the SEC (the "Registration Deadline") and PROVIDED FURTHER that the Registration Deadline shall not exceed ninety (90) days ~~after~~ from the ~~Execution Date~~ date hereof, and ~~shall~~ keep ~~such~~ the Registration ~~Statement~~ Statement(s) effective pursuant to Rule 415 at all times until the ~~earlier to occur~~ completion of the date on which (A) the Investor shall have sold all the Registrable Securities; or (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (hereinafter referred to as the “Registration Period”). The Registration ~~Statement~~ Statement(s) (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration ~~Statement~~ Statement(s) and the ~~prospectus~~ prospectus(es) used in connection with ~~such~~ the Registration ~~Statement~~Statement(s), which ~~prospectus is~~ prospectus(es) are to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep ~~such~~ the Registration ~~Statement~~ Statement(s) effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by ~~such~~ the Registration ~~Statement~~ Statement(s) until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ seller or sellers thereof as set forth in ~~such~~ the Registration ~~Statement~~Statement(s). In the event the number of shares ~~of Common Stock covered by the~~ available under a Registration Statement filed pursuant to this Agreement is ~~at any time~~ insufficient to cover all of the Registrable Securities, the Company shall amend ~~such~~ the Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within ~~thirty~~ fifteen (3015) ~~calendar~~ days after the necessity therefor arises (based on the ~~then Purchase Price~~ market price of the Common Stock and other relevant factors on which the Company reasonably elects to rely~~), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30~~) ~~calendar days after such shares are authorized~~or upon reasonable request therefor by any Investor. The Company shall use ~~commercially reasonable~~ its 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 the foregoing provision, the number of shares available under a Registration Statement shall be deemed "insufficient to cover all of the Registrable Securities" if at any time the number of Registrable Securities issued or issuable is in excess of the number of shares of Common Stock eligible for resale under the then effective Registration Statement(s) filed to cover the Registrable Securities in accordance with this Agreement. (c) The Company shall ~~make available~~ furnish to ~~the~~ each Investor whose Registrable Securities are included in ~~any~~ the Registration ~~Statement~~ Statement(s) and its legal ~~counsel~~ counsel, without charge: , (i) promptly after the same is prepared and filed with the ~~SEC~~ SEC, at least one ~~(1)~~ copy of ~~such~~ the Registration Statement and any ~~amendment(s)~~ amendment thereto, including financial statements and schedules, all documents incorporated therein by ~~reference~~ reference, and all exhibits, the ~~prospectus~~ prospectus(es) included in such Registration ~~Statement~~ Statement(s) (including each preliminary prospectus) ~~and, with regards to such Registration Statement(s), any~~ and all correspondence by or on behalf of the Company to the SEC or the staff of the SEC and ~~any~~ all correspondence from the SEC or the staff of the SEC to the Company or its representatives; , related to such Registration Statement(s), (ii) upon the effectiveness of any Registration Statement, ~~the Company shall make available~~ such number of copies of the ~~prospectus, via XXXXX,~~ prospectus included in such Registration Statement and all amendments and supplements ~~thereto; and~~ thereto as such Investor may reasonably request, and (iii) such other documents, including ~~copies of~~ any preliminary ~~or final~~ prospectus, as ~~the~~ such Investor may reasonably request ~~from time to time~~ in order to facilitate the disposition of the Registrable ~~Securities~~Securities owned by such Investor. (d) The Company shall ~~use commercially reasonable efforts to:~~ (i) register and qualify the Registrable Securities covered by the Registration ~~Statement~~ Statement(s) under such other securities or “"blue sky” " laws of such ~~states~~ jurisdictions in the United States as ~~the~~ any Investor reasonably requests~~; {00006670}~~ , (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; , (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions~~; provided~~, ~~however,~~ Provided that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to qualify to do business ~~in any jurisdiction where it would not otherwise be required~~ or to ~~qualify but for this Section 3(d), or b. subject itself~~ file a general consent to ~~general taxation~~ service of process in any such ~~jurisdiction. The Company shall promptly notify~~ states or jurisdictions, and further provided that (anything in this Section to the ~~Investor who holds Registrable Securities of the receipt by the Company of any notification~~ contrary notwithstanding with respect to the ~~suspension~~ bearing of ~~the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of~~ expenses) if any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which securities shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination qualified shall require that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of expenses incurred in connection with the qualification of ~~any of~~ the ~~Registrable Securities for sale~~ securities in ~~any~~ that jurisdiction ~~and, if such an order or suspension is issued~~be borne by selling shareholders pro rata, to ~~obtain~~ the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated extent required by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.such

Appears in 1 contract

Samples: Registration Rights Agreement (Anschutz Philip F)

RELATED OBLIGATIONS. At such time as the Company is obligated to ~~prepare and~~ file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), 2(c) or 2(d), the Company will use commercially reasonable efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, ~~with respect~~ pursuant thereto, the ~~Company~~ parties shall have the following obligations: ~~(a)~~ a. The Company shall ~~use all commercially reasonable efforts~~ submit to ~~cause~~ the SEC, within ten (10) Business Days after the Company learns that no review of a particular Registration Statement will be made by the staff of the SEC or that the staff has no further comments on a particular Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement ~~relating~~ to a time and date not later than 48 hours after the submission of such request. The Company shall take all reasonable measures to keep each Registration Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of which the Investors may sell all of the Registrable Securities ~~to become effective within ninety (90) days after the Execution Date and shall keep~~ covered by such Registration Statement ~~effective until~~ without restriction pursuant to Rule 144(k) (or any successor thereto) promulgated under the ~~earlier to occur of~~ 1933 Act or (ii) the date on which ~~(A)~~ the ~~Investor~~ Investors shall have sold all of the Registrable ~~Securities; or~~ Securities covered by such Registration Statement (B) the ~~Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (hereinafter referred to as the “~~"Registration Period”"). The Company shall ensure that each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements ~~therein~~therein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ seller or sellers thereof as set forth in such Registration Statement. In the ~~event the number~~ case of ~~shares of Common Stock covered by the~~ amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement ~~is at any time insufficient~~ (including pursuant to ~~cover all~~ this Section 3(b)) by reason of the ~~Registrable Securities~~Company filing a report on Form 6-K, Form 20-F or any analogous report under the Securities Exchange Act of 1934, as amended (the "1934 Act"), the Company shall ~~amend~~ have incorporated such report by reference into such Registration Statement, if applicable, or shall file ~~a new Registration Statement (~~such amendments or supplements with the SEC on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors same day on which the ~~Company reasonably elects to rely), assuming~~ 1934 Act report is filed which created the requirement for the Company ~~has sufficient authorized shares at that time~~to amend or supplement such Registration Statement. c. The Company shall permit Legal Counsel to review and comment upon (i) a Registration Statement prior to its filing with the SEC and (ii) all amendments and supplements to all Registration Statements (except for Annual Reports on Form 20-F, and ~~if it does not,~~ Reports on Form 6-K and any similar or successor reports) within ~~thirty (30) calendar~~ a reasonable number of days ~~after such shares are authorized~~prior to their filing with the SEC. The Company shall ~~use commercially reasonable efforts~~ furnish to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel Legal Counsel, without charge: , (i) ~~promptly after the same is prepared and filed with the SEC at least one (1) copy~~ upon Legal Counsel's request, copies of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its ~~representatives;~~ representatives relating to any Registration Statement, and (ii) upon the effectiveness of any Registration Statement, ~~the Company shall make available copies~~ one copy of the ~~prospectus, via XXXXX,~~ prospectus included in such Registration Statement and all amendments and supplements thereto~~; and~~. The Company shall reasonably cooperate with Legal Counsel in performing the Company's obligations pursuant to this Section 3. ~~(iii)~~ d. The Company shall furnish to each Investor whose Registrable Securities are included in any Registration Statement, without charge, upon the effectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and all amendments and supplements thereto and such other documents, including copies of any preliminary or final prospectus, as ~~the~~ such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable ~~Securities~~Securities owned by such Investor. ~~(d)~~ e. The Company shall use ~~commercially reasonable~~ its best efforts ~~to:~~ to (i) register and ~~qualify~~ qualify, unless an exemption from registration and qualification applies, the sale to the Investors of the Preferred Shares under such other securities or "blue sky" laws of all applicable jurisdictions in the United States. To the extent that the Investors are interested in reselling Registrable Securities in the United States, the Investors shall (i) register and qualify, unless an exemption from registration and qualification applies, the resale by the Investors of the Registrable Securities covered by ~~the~~ a Registration Statement under such other securities or “"blue sky” " laws of ~~such states~~ all applicable jurisdictions in the United ~~States as the Investor reasonably requests; {00006670}~~ States, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; , (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for ~~sale~~ resale in such jurisdictions~~; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to:~~. ~~a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction.~~ f. The Company shall ~~promptly~~ notify ~~the~~ Legal Counsel and each Investor ~~who holds Registrable Securities~~ in writing of the ~~receipt by the Company~~ happening of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As event, as promptly as practicable after becoming aware of such event, ~~the Company shall notify Investor in writing of the happening of any event~~ as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (~~hereinafter referred~~ provided that in no event shall such notice contain any material, nonpublic information), and, subject to ~~as “Registration Default”) and use all diligent efforts to~~ Section 3(r), promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and ~~make available copies~~ deliver a copy of such supplement or amendment to ~~the~~ Legal Counsel and each Investor. The Company shall also promptly notify ~~the Investor:~~ Legal Counsel and each Investor in writing (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (~~the Company will prepare~~ notification of such effectiveness ~~which~~ shall be delivered to ~~the~~ Legal Counsel and each Investor by facsimile on the same day of such effectiveness and by overnight mail), ~~additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , and (iii) Of of the Company’s 's reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) g. The Company shall use ~~all~~ commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify ~~the~~ Legal Counsel and each Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company h. Each party shall hold in confidence and not make any disclosure of information concerning the ~~Investor unless:~~ other party provided by the other party unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. ~~The Company~~ Each party agrees that it shall, upon learning that disclosure of such information concerning ~~the Investor~~ another party is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to ~~the Investor~~ such other party and allow ~~the Investor~~such other party, at ~~the Investor’s~~ its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order ~~covering~~ for, such information. ~~(j)~~ i. The Company shall use ~~all~~ commercially reasonable efforts either to ~~maintain designation and quotation~~ (i) cause all of ~~all~~ the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any a Registration Statement to be listed on each ~~other national~~ securities exchange ~~and automated quotation system, if any,~~ on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such ~~exchange~~ exchange, or ~~system~~(ii) secure designation and quotation of all of the Registrable Securities covered by a Registration Statement on the Nasdaq National Market if securities of the same class or series issued by the Company are then listed on the Nasdaq National Market if the listing of such Registrable Securities is then permitted under the rules of the Nasdaq National Market, or (iii) if the preceding clauses (i) and (ii) are inapplicable, to secure the inclusion for quotation on The Nasdaq SmallCap Market or Over The Counter quotation system for such Registrable Securities and, without limiting the generality of the foregoing, to use its commercially reasonable efforts to arrange for at least one market maker to register with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section ~~3(j)~~3(i) to the extent permitted by the rules of the exchange or market involved. ~~(k)~~ j. The Company shall cooperate with the ~~Investor~~ Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate the ~~prompt~~ timely preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the ~~Investor~~ Investors may reasonably request (and ~~after any sales of~~ registered in such ~~Registrable Securities by~~ names as the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant heretoInvestors may request. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) k. The Company shall use ~~all commercially reasonable~~ its best efforts to cause the Registrable Securities covered by ~~the applicable~~ a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to ~~facilitate~~ consummate the disposition of such Registrable Securities. l. The Company shall make generally available to its security holders as soon as practical, but not later than as required under applicable securities laws, an earnings statement (oin form complying with, and in the manner provided by, the provisions of Rule 158 under the 1933 Act) covering a twelve-month period beginning not later thax xxx xxrst day of the Company's fiscal quarter next following the effective date of a Registration Statement. m. The Company shall otherwise use ~~all commercially reasonable~~ its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. ~~(p) Within one (1) business day~~ n. Notwithstanding anything to the contrary herein, at any time after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. , the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company and its counsel, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (~~q) The~~ a "Grace Period"); provided, that the Company shall ~~take all other reasonable actions necessary~~ promptly (i) notify the Investors in writing of the existence of material, non-public information giving rise to ~~expedite~~ a Grace Period (provided that in each notice the Company will not disclose the content of such material, non-public information to the Investors) and ~~facilitate disposition~~ the date on which the Grace Period will begin, and (ii) notify the Investors in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed five (5) consecutive days and during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of twenty (20) days and the first day of any Grace Period must be at least two (2) trading days after the last day of any prior Grace Period (each, an "Allowable Grace Period"). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Investors receive the notice referred to in clause (i) and shall end on and include the later of the date the Investors receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 3(g) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of the Grace Period, the Company shall again be bound by the first sentence of Section 3(f) with respect to the information giving rise thereto unless such material, non-public information is no longer applicable. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended Ordinary Shares to a transferee of an Investor in accordance with the terms of the Securities Purchase Agreement in connection with any sale of Registrable Securities ~~pursuant~~ with respect to which an Investor has entered into a contract for sale, and delivered a copy of the prospectus included as part of the applicable Registration Statement, prior to the ~~Registration Statement~~Investor's receipt of the notice of a Grace Period and for which the Investor has not yet settled.

Appears in 1 contract

Samples: Registration Rights Agreement (Commtouch Software LTD)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ~~ninety~~ eighty (9080) calendar days after the ~~Execution~~ Closing Date and shall keep such Registration Statement effective pursuant to Rule 415 until the ~~earlier to occur of the date~~ Filing Date on which (A) the ~~Investor~~ Holder shall have sold all the Registrable Securities or the shares included therein otherwise cease to be Registrable Securities~~; or~~ , and (B) the ~~Investor~~ Holder has no right to ~~acquire any additional shares of~~ convert the securities it owns into Common Stock under the ~~Investment~~ Subscription Agreement, Debenture Agreement or Warrant Agreement, respectively (~~hereinafter referred to as~~ the “"Registration Period”")~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) ~~shall~~ shall, as of the date thereof, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall ~~use all commercially reasonable efforts to~~ respond to any and all SEC comments or correspondence, whether written or oral, direct or indirect, formal or informal ("Comments"), within seven (7) business days ~~from~~ of receipt by the Company of such Comments. If the Company fails to respond within seven (7) business days of receipt of SEC Comments, the Company shall pay to the Holder an amount equal to two percent (2%) per month, on a pro rata basis, compounded daily, of the Face Amount as liquidated damages and not as a penalty; provided that the seven (7) business day period provided herein shall be extended as may be required by delays caused by Holder's counsel pursuant to paragraph 3(g) below, and, provided further, that such ~~comments by the Company~~seven (7) business day period shall be extended two (2) business days for responses to SEC staff accounting comments. The Company shall ~~use all commercially reasonable efforts to~~ cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ two (52) business days after notice from the SEC that the Registration Statement ~~may be declared effective~~has been cleared of all comments. ~~The Investor agrees~~ Failure to ~~provide all information which it is required by law to provide to~~ do so will result in the ~~Company, including the intended method of disposition~~ Face Amount of the ~~Registrable Securities~~Debentures to be increased, ~~and~~ as liquidated damages, by five percent (5%) per calendar day for each day that the ~~Company’s obligations set forth above shall be conditioned on~~ Company does not request acceleration for effectiveness from the ~~receipt of such information. {00006670}~~SEC. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor thereof~~ Holder as set forth in such Registration Statement. In the event the number of shares of Common Stock ~~covered by the~~ available under a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof~~. (c) The Company shall make available~~ . Prior to conversion of all the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act Shares (as defined ~~below) and to be incorporated by reference~~ in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Debenture Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the ~~Investor~~Holder of this date) if at any time the conversion of all the Shares outstanding would result in an insufficient number of authorized shares of Common Stock being available to cover all the conversions, or in the event that Holder deems that the Shares authorized will become insufficient, the Company will move to call and hold a shareholder’s meeting within thirty (30) calendar days for the sole purpose of authorizing additional shares of Common Stock to facilitate the conversions. ~~The event(s) of~~ In such an ~~Investor's Delay~~ event the Company shall ~~act~~ recommend to ~~suspend~~ all ~~obligations of any {00006670} kind or nature~~ shareholders and management of the Company ~~under any and all agreements~~ to vote their shares in favor of ~~any nature or kind between~~ increasing the ~~Company and~~ authorized number of shares of Common Stock in sufficient number to fully cover the ~~Investor. (h) At the request of the Investor, the Company~~Holder's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreementconversion rights. The Company ~~agrees~~ represents and warrants that under no circumstances will it ~~shall, upon learning that disclosure of such information concerning~~ deny or prevent Holder’s right to convert the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then Shares as permitted under the ~~rules~~ terms of ~~such exchange~~ the Subscription Agreement or ~~system~~the Debenture Registration Rights Agreement. The ~~Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with~~ Holder retains the ~~Investor~~ right to request additional shares upon the determination the company may not be able to facilitate conversions in the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant heretofuture. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Debenture Registration Rights Agreement (Execute Sports Inc)

RELATED OBLIGATIONS. ~~At such time as the~~ The Company ~~is obligated~~ shall use its reasonable best efforts to ~~prepare and file the Registration Statement with the SEC pursuant to Section 2(a), the Company will~~ effect the registration of all the Registrable Securities in accordance with the intended method of disposition ~~thereof~~ thereof, and, ~~with respect~~ pursuant thereto, the Company shall have the following obligations: (ai) The Company shall promptly prepare and file with the SEC a Registration Statement with respect to all the Registrable Securities required to be covered thereby (but in no event later than the applicable Filing Deadline) and use ~~all commercially~~ its reasonable best efforts to cause such Registration Statement ~~relating to the Registrable Securities~~ to become effective ~~within ninety (90) days~~ as soon as practicable after such filing and prior to the ~~Execution Date and~~ applicable Effectiveness Deadline. The Company shall keep ~~such~~ each Registration Statement effective (and the prospectus contained therein available for use) pursuant to Rule 415 for resales by the Investors on a delayed or continuous basis at then-prevailing market prices (and not fixed prices) at all times until the earlier ~~to occur~~ of ~~the date on which~~ (A) the ~~Investor shall have sold~~ date as of which all of the Investors may sell all of the Registrable ~~Securities;~~ Securities required to be covered by such Registration Statement (disregarding any reduction pursuant to Section 4.7(g)) without restriction pursuant to Rule 144 (including, without limitation, volume restrictions) and without the need for current public information required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or (B) the ~~Investor has no right to acquire any additional shares~~ date on which the Investors shall have sold all of ~~Common Stock under~~ the ~~Investment Agreement~~ Registrable Securities covered by such Registration Statement (~~hereinafter referred to as~~ the “Registration Period”). ~~The~~ Notwithstanding anything to the contrary contained in this Agreement, the Company shall ensure that, when filed and at all times while effective, each Registration Statement (~~including any amendments or supplements thereto and prospectuses contained therein~~1) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements ~~therein~~therein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not ~~misleading~~misleading and (2) will disclose (whether directly or through incorporation by reference to other SEC filings to the extent permitted) all material information regarding the Company and its securities. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating submit to the ~~Registrable Securities to become effective no later than~~ SEC, within five (5) ~~business days~~ Business Days after ~~notice from~~ the ~~SEC~~ Staff advises the Company (orally or in writing, whichever is earlier) that the Staff either will not review a particular Registration Statement or has no further comments on such Registration Statement (as the case may ~~be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company~~be), ~~including the intended method~~ a request for acceleration of ~~disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt~~ effectiveness of such ~~information. {00006670}~~Registration Statement to a time and date not later than forty-eight (48) hours after the submission of such request. (bii) The Company shall prepare and file with the SEC such amendments (~~including~~ including, without limitation, post-effective amendments) and supplements to ~~the~~ each Registration Statement and the prospectus used in connection with each such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the ~~1933~~ Securities Act, as may be necessary to keep each such Registration Statement effective at all times during the Registration ~~Period~~Period for such Registration Statement, and, during such period, comply with the provisions of the ~~1933~~ Securities Act with respect to the disposition of all Registrable Securities of the Company required to be covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ seller or sellers thereof as set forth in such Registration ~~Statement. In~~ Statement or the ~~event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all~~ completion of the ~~Registrable Securities~~applicable Registration Period; provided, however, by 5:30 p.m. (New York time) on or prior to the ~~Company shall amend such Registration Statement, or file a new Registration Statement~~ fifth (~~on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30~~5th) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable Business Day immediately following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy effective date of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall ~~make available copies of~~ file with the ~~prospectus, via XXXXX, included~~ SEC in ~~such Registration Statement and all amendments and supplements thereto; and (iii~~accordance with Rule 424(b) ~~such other documents, including copies of any preliminary or~~ under the Securities Act the final ~~prospectus, as the Investor may reasonably request from time~~ prospectus to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required used in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment sales pursuant to such Registration Statement (whether or not such a prospectus is technically required by such rule). In the case of amendments and ~~take~~ supplements to any ~~other necessary steps to cure the Registration Default (which, if such~~ Registration Statement ~~is on Form S-3, may consist of a document~~ which are required to be filed ~~by the Company with the SEC~~ pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement ~~or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment.~~ (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, ~~information with respect~~ pursuant to ~~the offering~~ this Section 4.7(c)(ii)) by reason of the ~~Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement~~ Company filing a report on Form 10-Q or ~~post~~Form 10-~~effective amendment as soon as reasonably possible after being notified of~~ K or any analogous report under the ~~matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement~~ Exchange Act, the Company shall, if ~~reasonably requested by~~ permitted under the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the ~~SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the~~ SEC, have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on or prior to the third (3rd) Trading Day following the date on which the Exchange Act report is filed with the SEC which created the requirement for the Company ~~shall deliver~~ to ~~the transfer agent for~~ amend or supplement such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Securities Purchase Agreement (Fennec Pharmaceuticals Inc.)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use all commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of the date on which (A) the Investor shall have sold all the Registrable Securities; or (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the ~~Investor reasonably requests~~Company determines is required by law based on information provided by the Investor; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as~~ “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the ~~Investor:~~ Investor (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise.which (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any ~~{00006670}~~ kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor ~~unless:~~ unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend)~~. {00006670}~~. (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the ~~Investor~~Investor and if the Company agrees such disclosure is required by law, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably ~~determines~~ requests should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all ~~required~~ filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration ~~Statement if reasonably requested by the Investor~~Statement. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Payment Data Systems Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ~~ninety~~ one hundred ten (90110) calendar days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of (i) the date as of which the Holders may sell all of the Registrable Securities without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto) or (ii) the date on which (A) the ~~Investor~~ Holders shall have sold all the Registrable ~~Securities; or~~ Securities and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement respectively (~~hereinafter referred to as~~ the “"Registration Period”")~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall ~~use all commercially reasonable efforts to~~ respond to all SEC comments within seven (7) business days ~~from~~ of receipt ~~of such comments~~ by the Company. If the Company fails to respond within seven (7) business days of receipt of SEC comments, the Company shall pay to the Investor a cash amount within three (3) business days of the end of the month equal to 2% per month, on a pro rata basis, of the amount paid to purchase the Debentures then outstanding, as liquidated damages and not as a penalty; provided that the seven (7) business day period provided herein shall be extended as may be required by delays caused by Holders’ counsel pursuant to paragraph 3g below, and, provided further, that such seven (7) business day period shall be extended five (5) business days for responses to SEC staff accounting comments. The Company shall ~~use all commercially reasonable efforts to~~ cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock ~~covered by the~~ available under a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Virtra Systems Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of (i) the date as of which the Investors may sell all of the Registrable Securities without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto) or (ii) the date on which (A) the ~~Investor~~ Investors shall have sold all the Registrable ~~Securities; or~~ Securities and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “"Registration Period”"). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall ~~use all commercially reasonable efforts to~~ respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall ~~use all commercially reasonable efforts to~~ cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s 's obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by ~~the~~ a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Flexxtech Corp)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) calendar days after the ~~Execution Date~~ date and shall keep such Registration Statement effective pursuant to Rule 415 until the earlier of (i) the date as of which the Holder may sell all of the Registrable Securities without restriction pursuant to ~~occur of~~ Rule 144(k) or 144A promulgated under the 1933 Act or (ii) the date on which (A) the ~~Investor~~ Holder shall have sold all the Registrable ~~Securities; or~~ Securities and (B) the ~~Investor~~ Holder has no right to ~~acquire any additional shares of~~ convert the Shares it owns into Common Stock under the ~~Investment~~ Subscription Agreement respectively (~~hereinafter referred to as~~ the “"Registration Period”")~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall ~~use all commercially reasonable efforts to~~ respond to all SEC comments within seven (7) business days ~~from~~ of receipt ~~of such comments~~ by the Company. If the Company fails to respond within seven (7) business days of receipt of SEC comments, the Company shall pay to the Holder a cash amount within three (3) business days of the end of the month equal to 2% per month, on a pro rata basis, of the amount paid to purchase the Debentures then outstanding, as liquidated damages and not as a penalty; provided that the seven (7) business day period provided herein shall be extended as may be required by delays caused by Holder's counsel pursuant to paragraph 3g below, and, provided further, that such seven (7) business day period shall be extended two (2) business days for responses to SEC staff accounting comments. The Company shall ~~use all commercially reasonable efforts to~~ cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. ~~The Investor agrees~~ Failure to ~~provide all information which it is required~~ do so will result in the Debenture's Conversion Price to be increased by ~~law to provide to~~ one percent (1%) per day the ~~Company, including~~ company does not request acceleration from the ~~intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}~~SEC. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ Holder thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock ~~covered by the~~ available under a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof~~. (c) The Company shall make~~ . Prior to conversion of all the Shares, if at any time the conversion of all the Shares outstanding would result in an insufficient number of authorized shares of Common Stock being available to cover all the ~~Investor whose Registrable Securities are included~~ conversions, then in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company will move to call and hold a shareholder's meeting within thirty (30) calendar days of such event for the sole purpose of authorizing additional shares of Common Stock to facilitate the conversions. In such an event the Company shall ~~notify Investor in writing~~ recommend to all shareholders and management of the ~~happening~~ Company to vote their shares in favor of ~~any event as a result~~ increasing the authorized number of ~~which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement~~ shares of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the InvestorCommon Stock. The Company ~~shall also promptly notify~~ represents and warrants that under no circumstances will it deny or prevent Purchaser's right to convert the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale Shares as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the ~~rules~~ terms of ~~such exchange~~ this Subscription Agreement or ~~system~~this Registration Rights Agreement. The ~~Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with~~ Holder retains the ~~Investor~~ right to request additional shares upon the determination the company may not be able to facilitate conversions in the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant heretofuture. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Nighthawk Systems Inc)

RELATED OBLIGATIONS. At Whenever an Investor has requested that any Registrable Securities be registered pursuant to Section 2.b or at such time as the Company is obligated to ~~prepare and~~ file ~~the~~ a Registration Statement with the SEC pursuant to Section ~~2(a)~~2.a or 2.f, the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, ~~with respect~~ pursuant thereto, the Company shall have the following ~~obligations:~~obligations in addition to those under Sections 2.a and 2.f. ~~(a)~~ a. The Company shall ~~use all commercially reasonable efforts to cause such~~ not file any other Registration Statement ~~relating~~ with respect to any of its securities between the ~~Registrable Securities to become effective within~~ date hereof and ninety (90) days after the ~~Execution~~ Actual Effective Date ~~and~~ or any Additional Actual Effective Date of any Registration Statement required to be filed hereunder (provided that the Company may file (i) a Registration Statement on Form S-8 (or its equivalent at such time), (ii) a Registration Statement registering for resale securities held as of the date hereof by the Company's directors or executive officers, or holders who, as of the date of a proposed registration, beneficially own 5% or more of the Company's common stock, or (iii) a Registration Statement registering for resale shares underlying securities issued pursuant to a Private Placement Memorandum dated June 6, 2003, as amended or supplemented). The Company shall keep ~~such~~ each of the Registration ~~Statement~~ Statements required to be filed hereunder effective pursuant to Rule 415 at all times until the earlier of (i) the date as of which the Investors may sell all of the Registrable Securities pursuant to ~~occur~~ paragraph (k) of Rule 144 promulgated under the 1933 Act (or successor thereto) ("Rule 144") or (ii) the date on which ~~(A)~~ the ~~Investor~~ Investors shall have sold all of the Registrable ~~Securities;~~ Securities pursuant to an effective Registration Statement or Rule 144 (B) the ~~Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (hereinafter referred to as the “~~"Registration Period”")~~. The~~ , each of which Registration ~~Statement~~ Statements (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The term "best efforts" when used in the Section 3 shall mean, among other things, that the Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating submit to the ~~Registrable Securities to become effective no later than five (5)~~ SEC, within two business days after ~~notice from~~ the Company learns that no review of a particular Registration Statement or amendment thereto will be made by the staff of the SEC or that the staff has no further comments on the Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement ~~may be declared effective. The Investor agrees~~ to ~~provide all information which it is required by law to provide to~~ a time and date not later than 48 hours after the ~~Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt~~ submission of such ~~information. {00006670}~~request. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ seller or sellers thereof as set forth in such Registration Statement. In the ~~event the number~~ case of ~~shares of Common Stock covered by the~~ amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement ~~is at any time insufficient~~ (including pursuant to ~~cover all~~ this Section 3.b by reason of the ~~Registrable Securities~~Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the Securities Exchange Act of 1934, as amended (the "1934 Act"), if the information contained in such report is not incorporated by reference into such Registration Statement), the Company shall ~~amend~~ file such ~~Registration Statement,~~ amendments or ~~file a new Registration Statement (~~supplements with the SEC on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors same day on which the ~~Company reasonably elects to rely), assuming~~ 1934 Act report is filed which created the requirement for the Company ~~has sufficient authorized shares~~ to amend or supplement the Registration Statement. c. The Company shall (a) permit Legal Counsel to review and comment upon (i) the Registration Statement at ~~that time,~~ least seven (7) days prior to its filing with the SEC and ~~if it does not,~~ (ii) all other Registration Statements and all amendments and supplements to all Registration Statements within ~~thirty~~ a reasonable number of days prior to the their filing with the SEC and (30b) ~~calendar days after such shares are authorized~~not file any document in a form to which Legal Counsel reasonably objects. The Company shall ~~use commercially reasonable efforts to cause such amendment and/or new~~ not submit a request for acceleration of the effectiveness of a Registration Statement ~~to become effective as soon as practicable following~~ or any amendment or supplement thereto without the ~~filing thereof. (c)~~ prior approval of Legal Counsel, which approval shall not be unreasonably withheld. The Company shall ~~make available~~ furnish to Legal Counsel, without charge, (i) any correspondence between the SEC or the staff of the SEC and the Company or its representatives relating to any Registration Statement, (ii) promptly after the same is prepared and filed with the SEC, one copy of any Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits and (iii) upon the effectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and all amendments and supplements thereto. d. The Company shall furnish to each Investor whose Registrable Securities are included in any Registration ~~Statement and its legal counsel~~ Statement, without charge: , (i) promptly after the same is prepared and filed with the ~~SEC~~ SEC, at least one ~~(1)~~ copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by ~~reference~~ reference, all exhibits and ~~all exhibits, the prospectus included in such Registration Statement (including~~ each preliminary prospectus~~) and~~, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, ~~the Company shall make available~~ ten (10) copies of the ~~prospectus, via XXXXX,~~ prospectus included in such Registration Statement and all amendments and supplements ~~thereto; and~~ thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as ~~the~~ such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable ~~Securities~~Securities owned by such Investor. ~~(d)~~ e. The Company shall ~~use commercially reasonable efforts to:~~ (i) register and qualify the Registrable Securities covered by ~~the~~ a Registration Statement under such other securities or “"blue sky” " laws of such ~~states~~ jurisdictions in the United States as ~~the~~ Legal Counsel or any Investor reasonably requests~~; {00006670}~~ , (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; , (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section ~~3(d)~~3.e, ~~or b.~~ (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify ~~the~~ Legal Counsel and each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “"blue sky” " laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. ~~(e)~~ f. In the event Investors who hold a majority of the Registrable Securities being offered in an underwritten offering select underwriters for the offering, the Company shall enter into and perform its obligations under an underwriting agreement, in usual and customary form, including, without limitation, customary indemnification and contribution obligations, with the underwriters of such offering; provided, however, that the Company shall have the right to consent to the selection of such underwriters, which consent shall not be unreasonably withheld. g. As promptly as practicable after becoming aware of such event, the Company shall notify Legal Counsel and each Investor in writing of the happening of any event as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or ~~omission~~ omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (hereinafter referred to as “Registration Default”)~~ misleading, and ~~use all diligent efforts to~~ promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and ~~make available~~ deliver ten (10) copies of such supplement or amendment to ~~the Investor~~Legal Counsel and each Investor (or such other number of copies as Legal Counsel or such Investor may reasonably request). The Company shall also promptly notify ~~the Investor:~~ Legal Counsel and each Investor in writing (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (~~the Company will prepare~~ notification of such effectiveness ~~which~~ shall be delivered to ~~the~~ Legal Counsel and each Investor by facsimile on the same day of such effectiveness and by overnight mail), ~~additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , and (iii) Of of the Company’s 's reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) h. The Company shall use ~~all commercially reasonable~~ its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify ~~the~~ Legal Counsel and each Investor ~~holding~~ who holds Registrable Securities being sold (and, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning~~ for such purpose (such notice to be delivered by facsimile on the ~~effectiveness~~ same day such notice of the ~~registration statement. (g) The Company shall permit the Investor and one (1) legal counsel~~initiation or threat of such proceeding, ~~designated~~ such order or suspension is received by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investorby overnight mail). ~~(h)~~ i. At the request of ~~the~~ any Investor, the ~~Company's counsel~~ Company shall furnish to ~~the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of~~ such Investor, on the date of the effectiveness of the ~~registration statement~~ Registration Statement and ~~be in a form suitable~~ thereafter from time to ~~the Investor.~~ time on such dates as an Investor may reasonably request (i) if required by an underwriter, a letter, dated such date, from the Company's independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, addressed to the underwriters and the Investors. j. The Company shall make available for inspection by (i) any Investor, (ii) Legal Counsel, (iii) any underwriter participating in any disposition pursuant to a Registration Statement, (iv) one firm of accountants or other agents retained by the Investors and (v) one firm of attorneys retained by such underwriters (collectively, the "Inspectors") all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably deemed necessary by each Inspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any Records or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the 1933 Act, (b) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreement of which the Inspector has knowledge. Each Investor agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. k. The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the ~~Investor unless:~~ Company unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning ~~the~~ an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to ~~the~~ such Investor and allow ~~the~~ such Investor, at the Investor’s 's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order ~~covering~~ for, such information. ~~(j)~~ l. The Company shall use ~~all commercially reasonable~~ its best efforts either, at or prior to ~~maintain designation and quotation~~ the effective date of ~~all the Registrable Securities covered by any~~ a Registration Statement ~~on the Principal Market. If~~or any amendment thereto, ~~despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts~~ to (i) cause all the Registrable Securities covered by ~~any~~ such Registration Statement or amendment to be listed on each ~~other national~~ securities exchange ~~and automated quotation system, if any,~~ or market on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or ~~system~~market, or (ii) secure the inclusion for quotation on the over-the-counter market on the electronic bulletin board for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD"), as such with respect to such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section ~~3(j)~~3. (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Datatec Systems Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use all commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of the date on which (A) the Investor shall have sold all the Registrable Securities; or (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within ~~seven~~ ten (710) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise.to (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any ~~{00006670}~~ kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor ~~unless:~~ unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend)~~. {00006670}~~. (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Somerset International Group,inc.)

RELATED OBLIGATIONS. At such time as the Company is obligated to ~~prepare and~~ file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a) or 2(e), the Company will use its best efforts to effect the registration of the Registrable Securities covered by such Registration Statement in accordance with the intended method of disposition thereof and, ~~with respect~~ pursuant thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall promptly prepare and file with the SEC a Registration Statement with respect to the applicable Registrable Securities (but in no event later than the applicable Filing Deadline) and use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the applicable Registrable Securities to become effective ~~within ninety~~ as soon as practicable after such filing (90but in no event later than the applicable Effectiveness Deadline). The Company shall use its best efforts to keep each Registration Statement effective pursuant to Rule 415 at all times until the earlier of (i) ~~days after~~ the ~~Execution Date and shall keep~~ date as of which the Investors may sell all of the Registrable Securities covered by such Registration Statement ~~effective until~~ without restriction pursuant to Rule 144(k) (or successor thereto) promulgated under the ~~earlier to occur of~~ 1933 Act or (ii) the date on which ~~(A)~~ the ~~Investor~~ Investors shall have sold all the Registrable ~~Securities; or~~ Securities covered by such Registration Statement (~~B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (hereinafter referred to as the “Registration Period”~~each, a "REGISTRATION PERIOD")~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ seller or sellers thereof as set forth in such Registration Statement. In the ~~event the number~~ case of ~~shares of Common Stock covered by the~~ amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(b)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the Securities Exchange Act of 1934, as amended (the "1934 ACT"), the Company shall have incorporated such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is at filed which created the requirement for the Company to amend or supplement the Registration Statement. c. The Company shall permit Legal Counsel to review and comment upon (i) the Initial Registration Statement and any ~~time insufficient~~ Additional Registration Statement prior to ~~cover~~ its filing with the SEC and (ii) all other Registration Statements and all amendments and supplements to all Registration Statements (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K and any similar or successor reports) prior to their filing with the SEC. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement or any amendment or supplement thereto without the prior approval of Legal Counsel, which consent shall not be withheld unless Legal Counsel has reasonable objections to disclosures in the Registration Statement relating to (I) the Registrable Securities, the ~~Company shall amend such Registration Statement,~~ Preferred Shares or ~~file a new Registration Statement~~ the Warrants or (on II) the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorizedInvestors. The Company shall ~~use commercially reasonable efforts~~ furnish to ~~cause such amendment and/or new~~ Legal Counsel, without charge, (i) any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to any Registration Statement, (ii) promptly after the same is prepared and filed with the SEC, one copy of any Registration Statement ~~to become effective as soon as practicable following~~ and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits and (iii) upon the ~~filing thereof. (c)~~ effectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and all amendments and supplements thereto. The Company shall ~~make available~~ reasonably cooperate with Legal Counsel in performing the Company's obligations pursuant to ~~the~~ this Section 3. d. The Company shall furnish to each Investor whose Registrable Securities are included in any Registration ~~Statement and its legal counsel~~ Statement, without charge: , (i) promptly after the same is prepared and filed with the ~~SEC~~ SEC, at least one ~~(1)~~ copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by ~~reference~~ reference, all exhibits and ~~all exhibits, the prospectus included in such Registration Statement (including~~ each preliminary prospectus~~) and~~, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, ~~the Company shall make available~~ such number of copies of the ~~prospectus, via XXXXX,~~ prospectus included in such Registration Statement and all amendments and supplements ~~thereto; and~~ thereto (or such other number of copies as such Investor may reasonably request) as they may reasonably request and (iii) such other documents, including copies of any preliminary or final prospectus, as ~~the~~ such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable ~~Securities~~Securities owned by such Investor. ~~(d)~~ e. The Company shall use ~~commercially reasonable~~ its best efforts ~~to: (i) register and qualify the~~ to cause such Registrable Securities ~~covered~~ to be registered with or approved by ~~the Registration Statement under~~ such other ~~securities~~ governmental agencies or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications authorities as may be necessary to ~~maintain~~ consummate the ~~effectiveness thereof during the Registration Period; (iii) take~~ disposition of such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities ~~for sale in such jurisdictions~~pursuant to a Registration Statement; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section ~~3(d~~3(e), ~~or b.~~ (y) subject itself to general taxation in any such jurisdiction. , or (z) file a general consent to service of process in any such jurisdiction. f. The Company shall ~~promptly~~ notify ~~the~~ Legal Counsel and each Investor ~~who holds Registrable Securities~~ in writing of the ~~receipt by the Company~~ happening of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As event, as promptly as practicable after becoming aware of such event, ~~the Company shall notify Investor in writing of the happening of any event~~ as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as “Registration Default”)~~ provided that in no event shall such notice contain any material, nonpublic information), and ~~use all diligent efforts to~~ promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and ~~make available~~ deliver such number of copies of such supplement or amendment to ~~the Investor~~Legal Counsel and each Investor as Legal Counsel or such Investor may reasonably request. The Company shall also promptly notify ~~the Investor:~~ Legal Counsel and each Investor in writing (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (~~the Company will prepare~~ notification of such effectiveness ~~which~~ shall be delivered to ~~the~~ Legal Counsel and each Investor by facsimile on the same day of such effectiveness and by overnight mail), ~~additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , and (iii) Of of the Company’s 's reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) g. The Company shall use ~~all commercially reasonable~~ its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify ~~the~~ Legal Counsel and each Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) h. The Company shall cooperate with the ~~Investor~~ Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate the ~~prompt~~ timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the ~~Investor~~ Investors may reasonably request (and ~~after any sales of~~ registered in such ~~Registrable Securities by~~ names as the ~~Investor, such certificates not bearing any restrictive legend). {00006670}~~Investors may request. ~~(l)~~ i. The Company shall provide a transfer agent ~~for~~ and registrar of all ~~the~~ such Registrable Securities not later than the effective date of the ~~first~~ applicable Registration ~~Statement filed pursuant hereto~~Statement. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) j. The Company shall otherwise use ~~all commercially reasonable~~ its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. k. Within five (p5) ~~Within one (1) business day~~ Business Days after ~~the~~ a Registration Statement which ~~includes~~ covers applicable Registrable Securities is ~~declared~~ ordered effective by the SEC, the Company shall ~~deliver~~ deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable ~~Securities,~~ Securities (with copies to the ~~Investor,~~ Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the ~~SEC.~~SEC in the form attached hereto as EXHIBIT A. ~~(q)~~ l. The Company shall take all other ~~reasonable~~ actions reasonably necessary to expedite and facilitate disposition by ~~the Investor~~ Investors of Registrable Securities pursuant to a Registration Statement. m. Notwithstanding anything to the contrary in Section 3(g), at any time after the applicable Registration Statement has been declared effective by the SEC, the Company may suspend the use or effectiveness of any Registration Statement (a "GRACE PERIOD") (and the Investors hereby agree not to offer or sell any Registrable Securities pursuant to such Registration Statement during such Grace Period) if there is material non-public information about the Company that the Company reasonably determines not to be in the best interests of the Company to disclose and that the Company is not otherwise required to disclose; provided, that the Company shall promptly (i) notify the Investors in writing of such suspension and the date on which the Grace Period will begin and (ii) notify the Investors in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed forty-five (45) consecutive days and during any 365 day period such Grace Periods shall not exceed an aggregate of ninety (90) days provided that no Grace Period arising out of the same set of facts, circumstances or transactions shall be permitted for consecutive forty-five (45) day periods of days (an "ALLOWABLE GRACE PERIOD"). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the holders receive the notice referred to in clause (i) and shall end on and include the later of the date the holders receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 3(g) hereof shall not be applicable during any Allowable Grace Period. Upon expiration of the Grace Period, the Company shall again be bound by the first sentence of Section 3(f) with respect to the information giving rise thereto unless such material non-public information is no longer applicable. n. In the event of any underwritten public offering, the Company shall enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. Each Investor participating in such underwriting shall also enter into and perform its obligations pursuant to such an agreement. o. The Company shall obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any) in customary form addressed to the Investors and the underwriters, if any, covering such matters as are customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by the Investors and such underwriters (it being agreed that the matters to be covered by such opinion or a written statement by such counsel delivered in connection with such opinions shall include, without limitation, an opinion, subject to reasonable and customary qualifications as of the date of the opinion and as of the effective date of the Registration Statement relating to the registration or most recent post-effective amendment thereto, as the case may be, regarding the absence from such registration statement and the prospectus included therein, as then amended or supplemented, including the documents incorporated by reference therein, of an untrue statement of a material fact or the omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading). p. The Company shall obtain "comfort letters" and updates thereof from the independent public accountants of the Company (and, if necessary, any other independent public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to the Investors and the underwriters, in customary form and covering matters of the type customarily covered in comfort letters in connection with primary underwritten offerings. q. The Company shall deliver such other customary documents and certificates as may be reasonably requested by the Investors and the managing underwriters, if any, including those to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. r. Promptly after the filing of a Registration Statement hereunder, the Company shall promptly secure the listing of all of the Registrable Securities covered by such Registration Statement upon each national securities exchange and automated quotation system, if any, upon which shares of Common Stock shall be so listed (subject to notice of issuance) and shall maintain, so long as any other shares of Common Stock shall be so listed, such listing of such Registrable Securities.

Appears in 1 contract

Samples: Registration Rights Agreement (Divine Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use ~~all~~ commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of (i) the date as of which the Holders may sell all of the Registrable Securities without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto); or (ii) the date on which (A) the ~~Investor~~ Holders shall have sold all the Registrable Securities; or and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as the “~~"Registration Period”"). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use ~~all commercially reasonable~~ its best efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use ~~all commercially reasonable~~ its best efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The ~~Investor~~ Holder agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s 's obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by ~~the~~ a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Investment Agreement (Gameznflix Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to ~~prepare and~~ file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), 2(d) or 2(e), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, ~~with respect~~ pursuant thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall ~~use all commercially reasonable efforts~~ submit to ~~cause~~ the SEC, within two (2) Business Days after the Company learns that no review of a particular Registration Statement will be made by the staff of the SEC or that the staff has no further comments on a particular Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement ~~relating~~ to a time and date not later than forty-eight (48) hours after the submission of such request. The Company shall keep each Registration Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of which the Investors may sell all of the Registrable Securities ~~to become effective within ninety (90) days after the Execution Date and shall keep~~ covered by such Registration Statement ~~effective until~~ without restriction pursuant to Rule 144(k) (or any successor thereto) promulgated under the ~~earlier to occur of~~ 1933 Act or (ii) the date on which ~~(A)~~ the ~~Investor~~ Investors shall have sold all of the Registrable ~~Securities; or~~ Securities covered by such Registration Statement (B) the ~~Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (hereinafter referred to as the “Registration Period”~~"REGISTRATION PERIOD"). The Company shall ensure that each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements ~~therein~~therein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ seller or sellers thereof as set forth in such Registration Statement. In the ~~event the number~~ case of ~~shares of Common Stock covered by the~~ amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement ~~is at any time insufficient~~ (including pursuant to ~~cover all~~ this Section 3(b)) by reason of the ~~Registrable Securities~~Company filing a report on Form 10-QSB, Form 10-KSB or any analogous report under the Securities Exchange Act of 1934, as amended (the "1934 ACT"), the Company shall ~~amend~~ have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC prior to the opening of the next Business Day after which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement. c. The Company shall (A) permit Legal Counsel to review and comment upon (i) a ~~new~~ Registration Statement at least five (5) Business Days prior to its filing with the SEC and (ii) all amendments and supplements to all Registration Statements (except for Annual Reports on Form 10-KSB, Quarterly Reports on Form 10-QSB, Current Reports on Form 8-K and any similar or successor reports) within a reasonable number of days prior to their filing with the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that timeSEC, and ~~if it does not, within thirty~~ (30B) ~~calendar days after such shares are authorized~~not file any Registration Statement or amendment or supplement thereto in a form to which Legal Counsel reasonably objects in writing. The Company shall ~~use commercially reasonable efforts~~ furnish to ~~cause such amendment and/or new~~ Legal Counsel, without charge, (i) copies of any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to any Registration Statement, (ii) promptly after the same is prepared and filed with the SEC, one (1) copy of any Registration Statement ~~to become effective as soon as practicable following~~ and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by an Investor, and all exhibits and (iii) upon the ~~filing thereof. (c)~~ effectiveness of any Registration Statement, a copy of the prospectus included in such Registration Statement and all amendments and supplements thereto. The Company shall ~~make available~~ reasonably cooperate with Legal Counsel in performing the Company's obligations pursuant to ~~the~~ this Section 3. d. The Company shall furnish to each Investor whose Registrable Securities are included in any Registration ~~Statement and its legal counsel~~ Statement, without charge: , (i) promptly after the same is prepared and filed with the ~~SEC~~ SEC, at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by ~~reference~~ reference, if requested by an Investor, all exhibits and ~~all exhibits, the prospectus included in such Registration Statement (including~~ each preliminary prospectus~~) and~~, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, ~~the Company shall make available copies~~ a copy of the ~~prospectus, via XXXXX,~~ prospectus included in such Registration Statement and all amendments and supplements ~~thereto; and~~ thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as ~~the~~ such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable ~~Securities~~Securities owned by such Investor. ~~(d)~~ e. The Company shall use ~~commercially reasonable~~ its best efforts ~~to:~~ to (i) register and ~~qualify~~ qualify, unless an exemption from registration and qualification applies, the resale by Investors of the Registrable Securities covered by ~~the~~ a Registration Statement under such other securities or “"blue sky” " laws of ~~such states~~ all applicable jurisdictions in the United ~~States as the Investor reasonably requests; {00006670}~~ States, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; , (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section ~~3(d~~3(e), ~~or b.~~ (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify ~~the~~ Legal Counsel and each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “"blue sky” " laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. ~~(e) As~~ f. The Company shall notify Legal Counsel and each Investor in writing of the happening of any event, as promptly as practicable after becoming aware of such event, ~~the Company shall notify Investor in writing of the happening of any event~~ as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (~~hereinafter referred~~ provided that in no event shall such notice contain any material, nonpublic information), and, subject to ~~as “Registration Default”) and use all diligent efforts to~~ Section 3(o), promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and ~~make available copies~~ deliver a copy of such supplement or amendment to ~~the Investor~~Legal Counsel and each Investor (or such other number of copies as Legal Counsel or such Investor may reasonably request). The Company shall also promptly notify ~~the Investor:~~ Legal Counsel and each Investor in writing (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (~~the Company will prepare~~ notification of such effectiveness ~~which~~ shall be delivered to ~~the~~ Legal Counsel and each Investor by facsimile on the same day of such effectiveness and by overnight mail), ~~additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , and (iii) Of of the Company’s 's reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) g. The Company shall use ~~all commercially reasonable~~ its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify ~~the~~ Legal Counsel and each Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) h. The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the ~~Investor unless:~~ Company unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning ~~the~~ an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to ~~the~~ such Investor and allow ~~the~~ such Investor, at the Investor’s 's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order ~~covering~~ for, such information. ~~(j)~~ i. The Company shall use ~~all commercially reasonable~~ its best efforts to ~~maintain designation and quotation~~ cause all of ~~all~~ the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any a Registration Statement to be listed on each ~~other national~~ securities exchange ~~and automated quotation system~~or trading market (including without limitation, ~~if any,~~ The Nasdaq SmallCap Market) on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such ~~exchange or system~~exchange. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section ~~3(j~~3(i). ~~(k)~~ j. The Company shall cooperate with the ~~Investor~~ Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate the ~~prompt~~ timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the ~~Investor~~ Investors may reasonably request (and ~~after any sales of~~ registered in such ~~Registrable Securities by~~ names as the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant heretoInvestor may request. ~~(m)~~ k. If requested by ~~the~~ an Investor, the Company ~~shall:~~ shall (i) As as soon as ~~reasonably practical~~ practicable incorporate in a prospectus supplement or post-effective amendment such information as ~~the~~ an Investor reasonably ~~determines should~~ requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ as soon as practicable make all required filings of such prospectus supplement or post-effective amendment ~~as soon as reasonably possible~~ after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by an Investor holding any Registrable Securities to the ~~Investor~~effect of the foregoing. ~~(n)~~ l. The Company shall use ~~all commercially reasonable~~ its best efforts to cause the Registrable Securities covered by ~~the applicable~~ a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to ~~facilitate~~ consummate the disposition of such Registrable Securities. ~~(o)~~ m. The Company shall otherwise use ~~all commercially reasonable~~ its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. n. Within two (p2) ~~Within one (1) business day~~ Business Days after ~~the~~ a Registration Statement which ~~includes~~ covers Registrable Securities is ~~declared~~ ordered effective by the SEC, the Company shall deliver to the transfer agent for such Registrable ~~Securities,~~ Securities (with copies to the ~~Investor,~~ Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the SEC, in substantially the form attached hereto as Exhibit A, and shall cause legal counsel for the Company to deliver to the transfer agent (if so requested by the transfer agent) a legal opinion with respect to the Registrable Securities in the form reasonably acceptable to the transfer agent. o. Notwithstanding anything to the contrary herein, at any time after the Registration Statement has been declared effective by the SEC, the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company and its counsel, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (~~q) The~~ a "GRACE PERIOD"); provided, that the Company shall ~~take all other reasonable actions necessary~~ promptly (i) notify the Investors in writing of the existence of material, non-public information giving rise to ~~expedite~~ a Grace Period (provided that in each notice the Company will not disclose the content of such material, non-public information to the Investors) and ~~facilitate disposition~~ the date on which the Grace Period will begin, and (ii) notify the Investors in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed ten (10) consecutive days and during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of thirty (30) days and the first day of any Grace Period must be at least two (2) Business Days after the last day of any prior Grace Period (each, an "ALLOWABLE GRACE PERIOD"). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Investors receive the notice referred to in clause (i) and shall end on and include the later of the date the Investors receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 3(f) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of the Grace Period, the Company shall again be bound by the first sentence of Section 3(f) with respect to the information giving rise thereto unless such material, non-public information is no longer applicable. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended shares of Common Stock to a transferee of an Investor in accordance with the terms of the Securities Purchase Agreement in connection with any sale of Registrable Securities ~~pursuant~~ with respect to which an Investor has entered into a contract for sale, and delivered a copy of the prospectus included as part of the applicable Registration Statement, prior to the ~~Registration Statement~~Investor's receipt of the notice of a Grace Period and for which the Investor has not yet settled.

Appears in 1 contract

Samples: Registration Rights Agreement (Artistdirect Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to ~~prepare and~~ file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), 2(d) or 2(e), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, ~~with respect~~ pursuant thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall ~~use all commercially reasonable efforts~~ submit to ~~cause~~ the SEC, within two (2) Business Days after the Company learns that no review of a particular Registration Statement will be made by the staff of the SEC or that the staff has no further comments on a particular Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement ~~relating~~ to a time and date not later than two (2) Business Days after the submission of such request. The Company shall keep each Registration Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of which the Investors may sell all of the Registrable Securities ~~to become effective within ninety (90) days after the Execution Date and shall keep~~ covered by such Registration Statement ~~effective until~~ without restriction pursuant to Rule 144(k) (or any successor thereto) promulgated under the ~~earlier to occur~~ 1933 Act (without Cashless Exercise of the Warrants) or (ii) the date on which ~~(A)~~ the ~~Investor~~ Investors shall have sold all of the Registrable ~~Securities; or~~ Securities covered by such Registration Statement (B) the ~~Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (hereinafter referred to as the “~~"Registration Period”"). The Company shall ensure that each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements ~~therein~~therein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the ~~Investor~~ seller or sellers thereof as set forth in such Registration Statement. In the ~~event the number~~ case of ~~shares of Common Stock covered by the~~ amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement ~~is at any time insufficient~~ (including pursuant to ~~cover all~~ this Section 3(b)) by reason of the ~~Registrable Securities~~Company filing a report on Form 10-Q, Form 10-QSB, Form 10-K, Form 10-KSB or any analogous report under the Securities Exchange Act of 1934, as amended (the "1934 Act"), the Company shall ~~amend~~ have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement. c. The Company shall permit the Buyer to review and comment upon the “Selling Stockholders” and “Plan of Distribution” sections of the Registration Statement or any related Prospectus or amendment or supplement thereto and any risk factor contained in such document that addresses specifically the transactions contemplated under the Securities Purchase Agreement, as proposed to be filed; (i) in the case of a ~~new~~ Registration Statement, not less than three (3) Business Days prior to its filing with the SEC and (ii) in the case of any amendments and supplements to a Registration Statement (on except for reports or other filings made pursuant to the ~~short form available therefor, if applicable~~1934 Act), within a reasonable number of days prior to their filing with the SEC; provided that, the failure of any Investor or ~~both, so as~~ its counsel to ~~cover all of the Registrable Securities, in each case, as soon as practicable, but in any event~~ respond to such proposed documents within ~~thirty (30) calendar~~ two business days after ~~the necessity therefor arises (based on the then Purchase Price~~ receipt thereof shall be deemed approval of ~~the Common Stock~~ same; and ~~other relevant factors on which~~ provided, further, that no such review and comment shall inhibit the Company ~~reasonably elects to rely), assuming~~ from filing the ~~Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized~~Registration Statement or otherwise from complying with its obligations under this Agreement or under the 1933 Act or 1934 Act. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available furnish to the ~~Investor whose Registrable Securities are included in any Registration Statement and its legal counsel~~ Buyer, without charge: , upon the Buyer’s request (i) ~~promptly after the same is prepared and filed with the SEC at least one (1) copy~~ copies of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its ~~representatives;~~ representatives relating to the “Selling Stockholders” and “Plan of Distribution” sections of the Registration Statement and (ii) ~~upon~~ such number of copies of the ~~effectiveness of any~~ Registration Statement, any amendment(s) thereto, and prospectuses as may be required by the 1933 Act and such other documents as the Buyer may reasonably request. d. The Company shall ~~make available~~ furnish to each Investor, without charge and upon such Investor’s request, such number of copies of the ~~prospectus~~Registration Statement, ~~via XXXXX~~any amendment(s) thereto, ~~included in such Registration Statement~~ and ~~all amendments~~ prospectuses as may be required by the 1933 Act and ~~supplements thereto; and (iii)~~ such other ~~documents, including copies of any preliminary or final prospectus,~~ documents as ~~the~~ such Investor may reasonably ~~request~~ request. from time to time in order to facilitate the disposition of the Registrable ~~Securities~~Securities owned by such Investor. ~~(d)~~ e. The Company shall use ~~commercially reasonable~~ its best efforts ~~to:~~ to (i) register and ~~qualify~~ qualify, unless an exemption from registration and qualification applies, the resale by Investors of the Registrable Securities covered by ~~the~~ a Registration Statement under such other securities or “"blue sky” " laws of ~~such states~~ all applicable jurisdictions in the United ~~States as the Investor reasonably requests; {00006670}~~ States, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; , (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section ~~3(d~~3(e), ~~or b.~~ (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify ~~the~~ each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “"blue sky” " laws of any jurisdiction in the United States or its receipt of ~~actual~~ notice of the initiation or threatening of any proceeding for such purpose. ~~(e) As~~ f. The Company shall notify each Investor in writing of the happening of any event, as promptly as practicable after becoming aware of such event, ~~the Company shall notify Investor in writing of the happening of any event~~ as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (~~hereinafter referred~~ provided that in no event shall such notice contain any material, nonpublic information), and, subject to ~~as “Registration Default”) and use all diligent efforts to~~ Section 3(r), promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission~~, and make available copies of such supplement or amendment to the Investor~~. The Company shall also promptly notify ~~the Investor:~~ each Investor in writing (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (~~the Company will prepare~~ notification of such effectiveness ~~which~~ shall be delivered to ~~the~~ each Investor by facsimile on the same day of such effectiveness and by overnight mail), ~~additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , and (iii) Of of the Company’s 's reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) g. The Company shall use ~~all commercially reasonable~~ its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify ~~the~~ each Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of ~~actual~~ notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) h. The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the ~~Investor unless:~~ Company unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent ~~jurisdiction; or~~ jurisdiction or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this ~~Agreement~~ Agreement. If the Company becomes legally compelled (by subpoena, civil or criminal investigative demand or similar process) to make any ~~other agreement. The~~ disclosure that is prohibited or otherwise constrained by this Agreement, the Company ~~agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means,~~ shall give prompt written notice to ~~the~~ such Investor and allow ~~the~~ such Investor, at the Investor’s 's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order ~~covering~~ for, such information. ~~(j)~~ i. The Company shall use its best efforts either to (i) cause all ~~commercially reasonable efforts to maintain designation and quotation~~ of ~~all~~ the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any a Registration Statement to be listed on each ~~other national~~ securities exchange ~~and automated quotation system, if any,~~ on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such ~~exchange~~ exchange, or ~~system~~(ii) secure designation and quotation of all of the Registrable Securities covered by a Registration Statement on The NASDAQ Global Market. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section ~~3(j~~3(i). ~~(k)~~ j. The Company shall cooperate with the ~~Investor~~ Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate the ~~prompt~~ timely preparation and delivery of certificates (bearing any applicable restrictive legend) representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the ~~Investor~~ Investors may reasonably request (and ~~after any sales of~~ registered in such ~~Registrable Securities by~~ names as the ~~Investor, such certificates not bearing any restrictive legend). {00006670}~~Investors may request. ~~(l)~~ k. The Company shall ~~provide a transfer agent for~~ use its best efforts to comply with all ~~the Registrable Securities not later than the effective date~~ applicable rules and regulations of the ~~first Registration Statement filed pursuant hereto~~SEC in connection with any registration hereunder. ~~(m)~~ l. If requested by ~~the~~ an Investor, the Company ~~shall:~~ shall (i) As as soon as ~~reasonably practical~~ practicable incorporate in a prospectus supplement or post-effective amendment such information as ~~the~~ an Investor reasonably ~~determines should~~ requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ as soon as practicable make all required filings of such prospectus supplement or post-effective amendment ~~as soon as reasonably possible~~ after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by ~~the Investor~~an Investor holding any Registrable Securities. ~~(n)~~ m. The Company shall use ~~all commercially reasonable~~ its best efforts to cause the Registrable Securities covered by ~~the applicable~~ a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to ~~facilitate~~ consummate the disposition of such Registrable Securities. n. The Company shall make generally available to its security holders as soon as practical, but not later than ninety (o90) days after the close of the period covered thereby, an earnings statement (in form complying with, and in the manner provided by, the provisions of Rule 158 under the 0000 Xxx) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of a Registration Statement. o. The Company shall otherwise use ~~all commercially reasonable~~ its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. p. Within two (p2) ~~Within one (1) business day~~ Business Days after ~~the~~ a Registration Statement which ~~includes~~ covers Registrable Securities is ~~declared~~ ordered effective by the SEC, the Company shall ~~deliver~~ deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable ~~Securities,~~ Securities (with copies to the ~~Investor,~~ Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the ~~SEC.~~SEC in the form attached hereto as Exhibit A. q. Notwithstanding anything to the contrary herein, at any time after the Effective Date, the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company and its counsel, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (~~q) The~~ a "Grace Period"); provided, that the Company shall ~~take all other reasonable actions necessary~~ promptly (i) notify the Investors in writing of the existence of material, non-public information giving rise to ~~expedite~~ a Grace Period (provided that in each notice the Company will not disclose the content of such material, non-public information to the Investors) and ~~facilitate disposition~~ the date on which the Grace Period will begin, and (ii) notify the Investors in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed twenty (20) consecutive days or an aggregate of sixty (60) days during any three hundred sixty five (365) day period (an "Allowable Grace Period"). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Investors receive the notice referred to in clause (i) and shall end on and include the later of the date the Investors receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 3(g) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of the Grace Period, the Company shall again be bound by the first sentence of Section 3(f) with respect to the information giving rise thereto unless such material, non-public information is no longer applicable. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended shares of Common Stock to a transferee of an Investor in accordance with the terms of the Securities Purchase Agreement in connection with any sale of Registrable Securities ~~pursuant~~ with respect to which an Investor has entered into a contract for sale, and delivered a copy of the prospectus included as part of the applicable Registration Statement (unless an exemption from such prospectus delivery requirement exists), prior to the ~~Registration Statement~~Investor's receipt of the notice of a Grace Period and for which the Investor has not yet settled.

Appears in 1 contract

Samples: Registration Rights Agreement (Discovery Laboratories Inc /De/)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use ~~all~~ commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of (i) the date on which (A) the Investor shall have sold all the Registrable Securities; or and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “"Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use ~~all commercially reasonable~~ its best efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use ~~all commercially reasonable~~ its best efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by ~~the~~ a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by ~~the~~ a Registration Statement under such other securities or “blue sky” laws of such states in the United States as ~~the~~ any Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify ~~the~~ each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as~~ “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration ~~Default~~ Default, (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to ~~the~~ each Investor. The Company shall also promptly notify ~~the Investor:~~ Investor (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; ~~{00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , (iii) Of of the Company’s reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; , (iv) In in the event the Registration Statement is no longer effective~~; and / or~~ , or (v) ~~If the~~ if Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise.. The Company acknowledges that its failure to cure the Registration Default within ten (10) business days will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties’ good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. It is the intention of the parties that interest payable under any of the terms of this Agreement shall not exceed the maximum amount permitted under any applicable law. If a law, which applies to this Agreement which sets the maximum interest amount, is finally interpreted so that the interest in connection with this Agreement exceeds the permitted limits, then: (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. In case any provision of this Agreement is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, and the validity and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. (f) The Company shall use ~~all~~ commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon ~~the~~ a Registration Statement and all amendments and supplements thereto at least ~~one~~ seven (17) ~~calendar day~~ business days prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects. ~~However~~The Company may request to shorten the Investor’s review period and the Investor will, ~~any postponement~~ if possible, attempt to comply with the accelerated review period. The Company shall not submit to the SEC a request for acceleration of ~~a filing~~ the effectiveness of a Registration Statement or ~~any postponement of a request for acceleration or any postponement of~~ file with the ~~effective date or effectiveness of~~ SEC a Registration Statement ~~by written request~~ or any amendment or supplement thereto without the prior approval of such counsel or the ~~Investor (collectively~~Investor, ~~the "Investor's Delay")~~ which approval shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investorbe unreasonably withheld. (h) At the request of the Investor, the ~~Company's counsel~~ Company shall ~~furnish~~ cause to ~~the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall~~ be ~~issued as of~~ furnished to Investor, on the date of the effectiveness of a Registration Statement, a legal opinion, in form and substance reasonably acceptable to Investor’s counsel, dated as of such date, of counsel representing the ~~registration statement and be in a form suitable to the Investor~~Company for purposes of such Registration Statement. (i) The Company shall hold in confidence and not make any disclosure of information concerning a Investor provided to the ~~Investor unless:~~ Company unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning ~~the~~ a Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to ~~the~~ such Investor and allow ~~the~~ such Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order ~~covering~~ for, such information. (j) The Company shall use ~~all~~ commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s ~~commercially reasonable~~ best efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably ~~request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670}~~request. (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as ~~the~~ such Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by ~~the~~ such Investor. (n) The Company shall use ~~all~~ commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to ~~facilitate~~ consummate the disposition of such Registrable Securities. (o) The Company shall otherwise use ~~all~~ commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to ~~the~~ a Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Seawright Holdings Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use all commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of the date on which (A) the Investor shall have sold all the Registrable Securities; or (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (hereinafter referred to as the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests~~; {00006670}~~; (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company~~; {00006670}~~; (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any ~~{00006670}~~ kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the ~~Investor~~Investor in its reasonable discretion. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend)~~. {00006670}~~. (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Enerteck Corp)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the ~~Execution Date~~ date and shall keep such Registration Statement effective pursuant to Rule 415 until the earlier of (i) the date as of which the Holders may sell all of the Registrable Securities without restriction pursuant to ~~occur of~~ Rule 144(k) promulgated under the 1933 Act (or successor thereto) or (ii) the date on which (A) the ~~Investor~~ Holders shall have sold all the Registrable ~~Securities; or~~ Securities and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement respectively (~~hereinafter referred to as~~ the “"Registration Period”")~~. The~~ , which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information. {00006670}. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.a

Appears in 1 contract

Samples: Registration Rights Agreement (Can Cal Resources LTD)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use ~~all~~ commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ~~ninety~~ one hundred eight (90180) days after the ~~Execution Date~~ filing of the Registration Statement and shall keep such Registration Statement effective until the earlier to occur of (i) the date on which (A) the Investor shall have sold all the Registrable Securities; or and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use ~~all commercially reasonable~~ its best efforts to respond to all SEC comments within ~~seven~~ twenty (720) business days from receipt of such comments by the Company, except as such time period may be impacted by delays resulting from updated audited financial statements. The Company shall use ~~all commercially reasonable~~ its best efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by ~~the~~ a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as that the Company and Investor ~~may reasonably request from time to time in order~~ agree are necessary to facilitate the disposition of the Registrable Securities. Investor and the Company specifically agree that any information provided by the Company or the Investor that is not already otherwise publicly disclosed (except if disclosed due to the wrongdoing of Investor or the Company or anyone acting on Investor’s or Company's behalf), including, but not limited to, any correspondence by or on behalf of the Company or the Investor to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives or Investor and it's affiliates and representatives (all such information will be referred to as “confidential information”), will be kept strictly confidential by Parties and that Parties will not provide the information to anyone other than designated counsel. (d) The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by ~~the~~ a Registration Statement under such other securities or “blue sky” laws of such states in the United States as ~~the~~ any Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify ~~the~~ each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as~~ “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration ~~Default (which~~Default, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to ~~the~~ each Investor. The Company shall also promptly notify ~~the Investor:~~ Investor (i) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; ~~{00006670}~~ (ii) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , (iii) Of of the Company’s reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; , (iv) In in the event the Registration Statement is no longer effective~~; and / or~~ , or (v) ~~If the~~ if Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use ~~all~~ commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon ~~the~~ a Registration Statement and all amendments and supplements thereto at least ~~one~~ three (13) ~~calendar day~~ business days prior to their filing with the SEC. ~~However~~The Company may request to shorten the Investor’s review period and the Investor will, ~~any postponement~~ if possible, attempt to comply with the accelerated review period. The Company shall not submit to the SEC a request for acceleration of ~~a filing~~ the effectiveness of a Registration Statement or ~~any postponement of a request for acceleration or any postponement of~~ file with the ~~effective date or effectiveness of~~ SEC a Registration Statement or any amendment or supplement thereto without the prior review of such counsel or the Investor. The Company agrees to consider and attempt to include any revisions suggested by ~~written request~~ Investor or Investor’s counsel as long as the revision relates to information on Investor or the structure of the ~~Investor (collectively, the "Investor's Delay") shall not act to trigger~~ transactions contemplated herein or in any ~~penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all~~ other agreements ~~of any nature or kind~~ between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the ~~Company's counsel~~ Company shall ~~furnish~~ cause to ~~the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall~~ be ~~issued as of~~ furnished to Investor, on the date of the effectiveness of a Registration Statement, a legal opinion, in form and substance reasonably acceptable to Investor’s counsel, dated as of such date, of counsel representing the ~~registration statement and be in a form suitable to the Investor~~Company for purposes of such Registration Statement. (i) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the ~~Investor unless:~~ Company unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning ~~the~~ a Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to ~~the~~ such Investor and allow ~~the~~ such Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order ~~covering~~ for, such information. (j) The Company shall use ~~all~~ commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s ~~commercially reasonable~~ best efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably ~~request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670}~~request. (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If Subject to the restrictions contained in Section 3(g) hereof, if requested by the Investor, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as ~~the~~ such Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by ~~the~~ such Investor. (n) The Company shall use ~~all~~ commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to ~~facilitate~~ consummate the disposition of such Registrable Securities. (o) The Company shall otherwise use ~~all~~ commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within ~~one~~ three (13) business ~~day~~ days after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to ~~the~~ a Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Litfunding Corp)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (aA) The Company shall use ~~all~~ commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of (I) the date on which (A) the Investor shall have sold all the Registrable Securities; or and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “"Registration Period”"). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use ~~all commercially reasonable~~ its best efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use ~~all commercially reasonable~~ its best efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s 's obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (bB) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by ~~the~~ a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (cC) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (iI) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (iiII) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via ~~XXXXX~~EXXXX, included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (~~iii~~III) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (dD) The Company shall use commercially reasonable efforts ~~to:~~ to (iI) register and qualify the Registrable Securities covered by ~~the~~ a Registration Statement under such other securities or “"blue sky” " laws of such states in the United States as ~~the~~ any Investor reasonably requests; ~~{00006670}~~ (iiII) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (~~iii~~III) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (ivIV) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (X) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ or (Y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify ~~the~~ each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “"blue sky” " laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (eE) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as “~~"Registration Default”") and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration ~~Default~~ Default, (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to ~~the~~ each Investor. The Company shall also promptly notify ~~the Investor:~~ Investor (iI) ~~When~~ when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when ~~the~~ a Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; ~~{00006670}~~ (iiII) Of of any request by the SEC for amendments or supplements to ~~the~~ a Registration Statement or related prospectus or related information; , (~~iii~~III) Of of the Company’s 's reasonable determination that a post-effective amendment to ~~the~~ a Registration Statement would be appropriate; , (ivIV) In in the event the Registration Statement is no longer effective~~; and / or~~ , or (vV) ~~If the~~ if Registration Statement is stale as a result of the Company’s 's failure to timely file its financials or otherwise.. The Company acknowledges that its failure to cure the Registration Default within ten (10) business days will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. It is the intention of the parties that interest payable under any of the terms of this Agreement shall not exceed the maximum amount permitted under any applicable law. If a law, which applies to this Agreement which sets the maximum interest amount, is finally interpreted so that the interest in connection with this Agreement exceeds the permitted limits, then: (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. In case any provision of this Agreement is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, and the validity and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. (fF) The Company shall use ~~all~~ commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. (gG) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon ~~the~~ a Registration Statement and all amendments and supplements thereto at least ~~one~~ seven (17) ~~calendar day~~ business days prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects. ~~However~~The Company may request to shorten the Investor's review period and the Investor will, ~~any postponement~~ if possible, attempt to comply with the accelerated review period. The Company shall not submit to the SEC a request for acceleration of ~~a filing~~ the effectiveness of a Registration Statement or ~~any postponement of a request for acceleration or any postponement of~~ file with the ~~effective date or effectiveness of~~ SEC a Registration Statement ~~by written request~~ or any amendment or supplement thereto without the prior approval of such counsel or the ~~Investor (collectively~~Investorl, ~~the "Investor's Delay")~~ which approval shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investorbe unreasonably withheld. (hH) At the request of the Investor, the ~~Company's counsel~~ Company shall ~~furnish~~ cause to ~~the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall~~ be ~~issued as of~~ furnished to Investor, on the date of the effectiveness of a Registration Statement, a legal opinion, in form and substance reasonably acceptable to Investor's counsel, dated as of such date, of counsel representing the ~~registration statement and be in a form suitable to the Investor~~Company for purposes of such Registration Statement. (iI) The Company shall hold in confidence and not make any disclosure of information concerning a Investor provided to the ~~Investor unless:~~ Company unless (iI) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (iiII) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (~~iii~~III) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (ivIV) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning ~~the~~ a Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to ~~the~~ such Investor and allow ~~the~~ such Investor, at the Investor’s 's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order ~~covering~~ for, such information. (jJ) The Company shall use ~~all~~ commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company~~’s commercially reasonable~~ 's best efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (kK) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably ~~request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670}~~request. (lL) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (mM) If requested by the Investor, the Company ~~shall:~~ shall (iI) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as ~~the~~ such Investor reasonably ~~determines~~ determine should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (iiII) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (~~iii~~III) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by ~~the~~ such Investor. (nN) The Company shall use ~~all~~ commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to ~~facilitate~~ consummate the disposition of such Registrable Securities. (oO) The Company shall otherwise use ~~all~~ commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (pP) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (qQ) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to ~~the~~ a Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Newave Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: ~~(a)~~ a. The Company shall use ~~all commercially reasonable~~ its best efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ninety (90) days after the Execution Date and shall keep such Registration Statement effective until the earlier to occur of (i) the date as of which the Holders may sell all of the Registrable Securities without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto) or (ii) the date on which (A) the ~~Investor~~ Holders shall have sold all the Registrable ~~Securities; or~~ Securities and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “"Registration Period”"). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall ~~use all commercially reasonable efforts to~~ respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall ~~use all commercially reasonable efforts to~~ cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five~~ three (53) business days after notice from the SEC that the Registration Statement may be declared effective. The ~~Investor~~ Holder agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s 's obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. ~~(b)~~ b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by ~~the~~ a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares are authorized. The Company shall use ~~commercially reasonable~~ it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without charge: (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the prospectus, via XXXXX, included in such Registration Statement and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts to: (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such states in the United States as the Investor reasonably requests; {00006670} (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to: a. qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), or b. subject itself to general taxation in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (hereinafter referred to as “Registration Default”) and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise. (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. (f) The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement. (g) The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or effectiveness of a Registration Statement by written request of the Investor (collectively, the "Investor's Delay") shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor's Delay shall act to suspend all obligations of any {00006670} kind or nature of the Company under any and all agreements of any nature or kind between the Company and the Investor. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (i) The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless: (i) Disclosure of such information is necessary to comply with federal or state securities laws; (ii) The disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; (iii) The release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) Such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order covering such information. (j) The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j). (k) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates representing the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670} (l) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (m) If requested by the Investor, the Company shall: (i) As soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; (ii) Make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) Supplement or make amendments to any Registration Statement if reasonably requested by the Investor. (n) The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the disposition of such Registrable Securities. (o) The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (p) Within one (1) business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. (q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Cal Bay International Inc)

RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file ~~the~~ a Registration Statement with the SEC pursuant to Section 2(a), the Company will effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect thereto, the Company shall have the following obligations: (a) The Company shall use ~~all~~ commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities to become effective within ~~ninety (90)~~ 90 days after the ~~Execution~~ Initial Filing Date and shall keep such Registration Statement effective until the earlier to occur of (i) the date as of which the Investor may sell all of the Registrable Securities without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto); or (ii) the date on which (A) the Investor shall have sold all the Registrable Securities; or and (B) the Investor has no right to acquire any additional shares of Common Stock under the Investment Agreement (~~hereinafter referred to as~~ the “"Registration Period”"). The Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. The Company shall use ~~all commercially reasonable efforts to respond to all SEC comments within seven (7) business days from receipt of such comments by the Company. The Company shall use all commercially reasonable~~ its best efforts to cause the Registration Statement relating to the Registrable Securities to become effective no later than ~~five (5)~~ three business days after notice from the SEC that the Registration Statement may be declared effective. The Investor agrees to provide all information which it is required by law to provide to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s 's obligations set forth above shall be conditioned on the receipt of such information~~. {00006670}~~. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to ~~the~~ a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by ~~the~~ a Registration Statement filed pursuant to this Agreement is at any time insufficient to cover all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within ~~thirty (30)~~ 30 calendar days after the necessity therefor arises (based on the then Purchase Price of the Common Stock and other relevant factors on which the Company reasonably elects to rely), assuming the Company has sufficient authorized shares at that time, and if it does not, within ~~thirty (30)~~ 30 calendar days after such shares are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. (c) The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal counsel without ~~charge:~~ charge (i) promptly after the same is prepared and filed with the SEC at least one ~~(1)~~ copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to the Company or its representatives; ; (ii) upon the effectiveness of any Registration Statement, the Company shall make available copies of the ~~prospectus, via XXXXX,~~ prospectus included in such Registration Statement and all amendments and supplements thereto; ~~and~~ and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities. (d) The Company shall use commercially reasonable efforts ~~to:~~ to (i) register and qualify the Registrable Securities covered by ~~the~~ a Registration Statement under ~~such other~~ the securities or “"blue sky” " laws of such states in the United States as ~~the~~ Investor reasonably requests; ~~{00006670}~~ (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period; ; (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, ~~and~~ and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto ~~to: a.~~ to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), ~~or b.~~ or (y) subject itself to general taxation in any such jurisdiction. The Company shall promptly notify ~~the~~ each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “"blue sky” " laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose. (e) As promptly as practicable after becoming aware of such event, the Company shall notify each Investor in writing of the happening of any event as a result of which the prospectus included in ~~the~~ a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~hereinafter referred to as “~~"Registration Default”") and use all diligent efforts to promptly prepare a supplement or amendment to such Registration Statement and take any other necessary steps to cure the Registration ~~Default~~ Default, (which, if such Registration Statement is on Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission, and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor: (i) When a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy of the effectiveness order prepared by the SEC once it is received by the Company; {00006670} (ii) Of any request by the SEC for amendments or supplements to the Registration Statement or related prospectus or related information; (iii) Of the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; (iv) In the event the Registration Statement is no longer effective; and / or (v) If the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise.by (1) any such interest shall be reduced by the amount necessary to reduce the interest to the permitted limit; and (2) any sums already collected (if any) from the Company which exceed the permitted limits will be refunded to the Company. The Investor may choose to make this refund by reducing the amount that the Company owes under this Agreement or by making a direct payment to the Company. If a refund reduces the amount that the Company owes the Investor, the reduction will be treated as a partial payment. In case any provision of this Agreement is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, and the validity and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. (f) The Company shall use ~~all~~ commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of ~~the~~ a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Investor ~~holding~~ who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding ~~concerning the effectiveness of the registration statement~~for such purpose. (g) The Company shall permit the Investor and one ~~(1)~~ legal counsel, designated by the Investor, to review and comment upon ~~the~~ a Registration Statement and all amendments and supplements thereto at least ~~one (1) calendar day~~ two business days prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects. ~~However, any postponement~~ The Company shall not submit to the SEC a request for acceleration of ~~a filing~~ the effectiveness of a Registration Statement or ~~any postponement of~~ file with the SEC a ~~request for acceleration~~ Registration Statement or any ~~postponement~~ amendment or supplement thereto without the prior approval of such counsel, which approval shall not be unreasonably withheld. (h) The Company shall cause to be furnished to Investor, on the date of the ~~effective date or~~ effectiveness of a Registration Statement or as soon thereafter as is practicable, written notification of effectiveness. (i) The Company shall make available for inspection by ~~written request~~ (i) the Investor and (ii) one legal counsel and one firm of accountants or other agents retained by the Investor (collectively, the "~~Investor~~Inspectors"), all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably deemed necessary by each Inspector, and cause the Company's ~~Delay")~~ officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, that each Inspector shall hold in strict confidence and shall not ~~act~~ make any disclosure (except to ~~trigger any penalty~~ a Investor) or use of any ~~kind~~Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the 1933 Act, (b) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or ~~any cash amount due~~ (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any ~~in-kind amount due~~ other agreement of which the Inspector has knowledge. Each Investor ~~from the Company under any and all agreements~~ agrees that it shall, upon learning that disclosure of ~~any nature~~ such Records is sought in or ~~kind between~~ by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the ~~Investor. The event(s) of an Investor's Delay shall act~~ Company, at its expense, to ~~suspend all obligations of any {00006670} kind~~ undertake appropriate action to prevent disclosure of, or ~~nature of~~ to obtain a protective order for, the ~~Company under any and all agreements of any nature or kind between the Company and the Investor~~Records deemed confidential. (h) At the request of the Investor, the Company's counsel shall furnish to the Investor an opinion letter confirming the effectiveness of the registration statement. Such opinion letter shall be issued as of the date of the effectiveness of the registration statement and be in a form suitable to the Investor. (ij) The Company shall hold in confidence and not make any disclosure of information concerning a Investor provided to the ~~Investor unless:~~ Company unless (i) ~~Disclosure~~ disclosure of such information is necessary to comply with federal or state securities laws; , (ii) ~~The~~ the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement; , (iii) ~~The~~ the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction~~; or~~ , or (iv) ~~Such~~ such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning ~~the~~ a Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to ~~the~~ such Investor and allow ~~the~~ such Investor, at the Investor’s 's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order ~~covering~~ for, such information. (jk) The Company shall use ~~all~~ commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered by any Registration Statement on the Principal Market. If, despite the Company~~’s commercially reasonable~~ 's best efforts, the Company is unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any, on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section ~~3(j~~3(k). (kl) The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to ~~the~~ a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investor may reasonably ~~request (and after any sales of such Registrable Securities by the Investor, such certificates not bearing any restrictive legend). {00006670}~~request. (lm) The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration Statement filed pursuant hereto. (mn) If requested by the Investor, the Company ~~shall:~~ shall (i) As as soon as reasonably practical incorporate in a prospectus supplement or post-effective amendment such information as ~~the~~ such Investor reasonably ~~determines~~ determine should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities to be sold in such offering; ; (ii) ~~Make~~ make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; ~~and~~ and (iii) ~~Supplement~~ supplement or make amendments to any Registration Statement if reasonably requested by ~~the~~ such Investor. (no) The Company shall use ~~all~~ commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to ~~facilitate~~ consummate the disposition of such Registrable Securities. (op) The Company shall otherwise use ~~all~~ commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. (pq) Within one ~~(1)~~ business day after the Registration Statement which includes Registrable Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such Registration Statement has been declared effective by the SEC. ~~(q) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities pursuant to the Registration Statement.~~

Appears in 1 contract

Samples: Registration Rights Agreement (Assure Energy Inc)

Common use of RELATED OBLIGATIONS Clause in Contracts