RELATED OBLIGATIONS. a. The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration 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 Rule 144(k) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration 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. b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement(s) and the prospectus(es) used in connection with the Registration Statement(s) as may be necessary to keep the Registration 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 the Registration 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 seller or sellers thereof as set forth in the Registration Statement(s). c. The Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of the Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor. d. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United 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 (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders. 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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Investor as such Investor may reasonably request. g. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof. h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects. i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information. l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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. m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions. n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Syquest Technology Inc), Securities Purchase Agreement (Syquest Technology Inc)
RELATED OBLIGATIONS. a. The With respect to the Registration Statement and whenever any Registrable Securities are to be registered pursuant to Sections 2(a) and (c), including on any New Registration Statement, the Company shall use its reasonable best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep effect the Registration 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 registration of the Registrable Securities without restriction in accordance with the intended method of disposition thereof and, pursuant to Rule 144(k) promulgated under thereto, the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration 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.following obligations:
b. a. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the any Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with the such Registration Statement(s) Statement, as may be necessary to keep the Registration Statement(s) Statement or any New Registration Statement effective at all times during the Registration Period, subject to Permitted Delays and Section 3(e) 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 the Registration Statement(s) Statement or any New 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 seller or sellers thereof as set forth in such Registration Statement. Should the Company file a post-effective amendment to the Registration Statement(sStatement or a New Registration Statement, the Company will use its reasonable best efforts to have such filing declared effective by the SEC within thirty (30) consecutive Business Days following the date of filing, which such period shall be extended for an additional thirty (30) Business Days if the Company receives a comment letter from the SEC in connection therewith. If (i) there is material non-public information regarding the Company which the Company’s Board of Directors reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Company’s Board of Directors reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under a Registration Statement or a New Registration Statement, then the Company may postpone or suspend filing or effectiveness of such Registration Statement or New Registration Statement or use of the prospectus under the Registration Statement or New Registration Statement for a period not to exceed thirty (30) consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(a) for more than sixty (60) days in the aggregate during any twelve (12) month period (each, a “Permitted Delay”).
c. b. The Company shall submit to the Buyer for review and comment any disclosure in the Registration Statement, any New Registration Statement and all amendments and supplements thereto (other than prospectus supplements that consist only of a copy of a filed Form 10-K, Form 10-Q or a Current Report on Form 8-K or any amendment as a result of the Company’s filing of a document that is incorporated by reference into the Registration Statement or New Registration Statement) containing information provided by the Buyer for inclusion in such document and any descriptions or disclosure regarding the Buyer, the Purchase Agreement, including the transaction contemplated thereby, or this Agreement at least two (2) Business Days prior to their filing with the SEC, and not file any document in a form to which Buyer reasonably and timely objects. Upon request of the Buyer, the Company shall provide to the Buyer all disclosure in the Registration Statement or any New Registration Statement and all amendments and supplements thereto (other than prospectus supplements that consist only of a copy of a filed Form 10-K, Form 10-Q or Current Report on Form 8-K or any amendment as a result of the Company’s filing of a document that is incorporated by reference into the Registration Statement or New Registration Statement) at least two (2) Business Days prior to their filing with the SEC, and not file any document in a form to which Buyer reasonably and timely objects. The Buyer shall use its reasonable best efforts to comment upon the Registration Statement or any New Registration Statement and any amendments or supplements thereto within two (2) Business Days from the date the Buyer receives the final version thereof. The Company shall furnish to each Investor whose Registrable Securities are included in the Buyer, without charge, any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to the Registration Statement(s) and its legal counsel Statement or any New Registration Statement.
c. Upon request of the Buyer, the Company shall furnish to the Buyer, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) such number of copies upon the effectiveness of a prospectusRegistration Statement, including a preliminary prospectus, copy of the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as the Buyer may reasonably request) and (iii) such Investor other documents, including copies of any preliminary or final prospectus, as the Buyer may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investorthe Buyer.
d. The Company shall use reasonable best efforts to (i) register and qualify qualify, unless an exemption from registration and qualification is available, the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Buyer reasonably request (but in no event in more than five states of the United States)requests, (ii) subject to Permitted Delays, 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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Buyer who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. As e. Subject to Permitted Delays, as promptly as reasonably practicable after becoming aware of such eventevent or facts, the Company shall notify each Investor of the happening of any event, of which Buyer in writing if the Company has knowledge, as a result of which determined that the prospectus included in a any 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, and use as promptly as reasonably practical (taking into account the Company’s good faith assessment of any adverse consequences to the Company and its best efforts promptly to stockholders of premature disclosure of such event or facts) prepare a prospectus supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and and, upon the Buyer’s request, deliver such number of copies a copy of such prospectus supplement or amendment to each Investor the Buyer. In providing this notice to the Buyer, the Company shall not include any other information about the facts underlying the Company’s determination and shall not in any way communicate any material nonpublic information about the Company or the Common Stock to the Buyer. The Company shall also promptly notify the Buyer in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Buyer by facsimile or e-mail on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to any Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate. In no event shall the delivery of a notice under this Section 3(e), or the resulting unavailability of a Registration Statement, without regard to its duration, for disposition of securities by Buyer be considered a breach by the Company of its obligations under this Agreement. The preceding sentence in this Section 3(e) does not limit whether an event of default has occurred as such Investor may reasonably requestset forth in Section 9(a) of the Purchase Agreement.
g. f. The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a any Registration Statement, or the suspension of the qualification of any 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 practical time and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) Buyer of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. g. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by if the Registration Statement on the Nasdaq National Principal Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 term is defined in the Purchase Agreement) is an automated quotation system. The Company shall pay all fees and expenses in connection with respect to such Registrable Securitiessatisfying its obligation under this Section.
m. h. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, Buyer to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a any Registration Statement and enable such certificates to be in such denominations or amounts, amounts as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Buyer may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Buyer may request. Not later than .
i. The Company shall at all times provide a transfer agent and registrar with respect to its Common Stock.
j. If reasonably requested by the date on which Buyer, the Company shall (i) promptly incorporate in a prospectus supplement or post-effective amendment to the Registration Statement such information as the Buyer believes should 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 sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities; (ii) make all required filings of such prospectus supplement or post-effective amendment promptly 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 registering (including by means of any document incorporated therein by reference).
k. The Company shall use its reasonable best efforts to cause the resale of Registrable Securities covered by any Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary to consummate the disposition of such Registrable Securities.
l. Within one (1) Business Day after any Registration Statement is declared effectiveordered effective by the SEC, the Company shall deliver to its transfer agent instructionsthe Transfer Agent for such Registrable Securities (with copies to the Buyer) confirmation that such Registration Statement has been declared effective by the SEC in the form attached hereto as Exhibit A. Thereafter, accompanied if reasonably requested by the Buyer at any reasonably required opinion time, the Company shall deliver to the Buyer a written confirmation of counselwhether or not the effectiveness of such Registration Statement has lapsed at any time for any reason (including, that permit sales without limitation, the issuance of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures stop order) and whether or not the Registration Statement is currently effective and available to the Buyer for regular way market transactionssale of all of the Registrable Securities.
n. m. The Company shall agrees to take all other reasonable actions as necessary and reasonably requested by the Buyer to expedite and facilitate disposition by the Investors Buyer of Registrable Securities pursuant to a any Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (MYnd Analytics, Inc.), Registration Rights Agreement (MYnd Analytics, Inc.)
RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file 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. The Company shall use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible within one hundred twenty (120) days after the Effective Date and shall keep such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of which the Investors 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 Investors Investor shall have sold all the Registrable Securities and (B) none of the Preferred Investor has no right to convert the Shares is outstanding it owns into Common Stock under the Subscription Agreement respectively (the "Registration Period"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers Investor thereof as set forth in such Registration Statement. In the Registration Statement(s).
c. The Company shall furnish to each Investor whose Registrable Securities are included in event the Registration Statement(s) and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy number of the shares of Common Stock available under a Registration Statement and filed pursuant to this Agreement is at any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and time insufficient to cover all amendments and supplements thereto and such other documents as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by Securities, the Company shall amend such Investor.
d. 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 reasonable it best efforts to (i) register and qualify the Registrable Securities covered by the cause such amendment and/or new Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions in the United States Statement to become effective as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United 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 (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 soon as practicable after becoming aware following the filing thereof. Prior to conversion of all the Shares, if at anytime 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, then in such event, the Company shall notify each Investor of the happening of any event, of which the Company has knowledge, as will move to call and hold a result of which the prospectus included in 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such number of copies shareholder's meeting within thirty (30) days of such supplement or amendment event for the sole purpose of authorizing additional shares of Common Stock to each Investor as such Investor may reasonably request.
g. The Company shall use its best efforts to prevent facilitate the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if conversions. In such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered recommend to an underwriter, if any, for sale in connection with the Registration Statement (i) if required by an underwriter, a letter, dated such date, from the Company's independent certified public accountants in form all shareholders 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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters (collectively, the "Inspectors") all pertinent financial and other records, and pertinent corporate documents and properties management of the Company (collectively, to vote their shares in favor of increasing the "Records"), as shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes authorized number of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use shares of any 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, (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 agreementCommon Stock. The Company shall not be required represents and warrants that under no circumstances will it deny or prevent Purchaser's right to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to convert the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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, this Subscription Agreement or (ii) secure designation and quotation of all the Registrable Securities covered by the this Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 SecuritiesRights Agreement.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Diversified Product Inspections Inc), Registration Rights Agreement (Diversified Product Inspections Inc)
RELATED OBLIGATIONS. a. At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section 2, the Company will 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:
3.1 The Company shall use its best all commercially reasonable efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible after and shall keep such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times 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 Investors Investor shall have sold all the Registrable Securities and Securities; (B) none the Investor has no right to acquire any additional shares of Common Stock under the Preferred Shares is outstanding Investment Agreement; or (C) have been sold pursuant to Rule 144 or may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 (the "“Registration Period"”), which Registration 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.
b. 3.2 The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers Investor thereof as set forth in such Registration Statement. In the event the number of shares of Common Stock covered by the Registration Statement(sStatement 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).
c. , 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 furnish use commercially reasonable efforts to each cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof.
3.3 The Company shall make available to the Investor whose Registrable Securities are included in the any Registration Statement(s) Statement and its legal counsel without charge (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, SEC at least one (1) copy of the such Registration Statement and any amendment 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 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 prospectus and each amendment any correspondence from the SEC or supplement thereto, and the staff of the SEC to the Company or its representatives; (ii) such number upon the effectiveness of any Registration Statement, the Company shall make available copies of a the prospectus, including a preliminary prospectusvia XXXXX, included in such Registration Statement and all amendments and supplements thereto thereto; and (iii) such other documents documents, including copies of any preliminary or final prospectus, as such the Investor may reasonably request in order from time to time to facilitate the disposition of the Registrable Securities owned by such InvestorSecurities.
d. 3.4 The Company shall use commercially reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions states in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Investor reasonably request (but in no event in more than five states of the United States), requests; (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 (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 (ax) 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 (by) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service . The Company shall promptly notify the Investor who holds Registrable Securities of process in the receipt by the Company of any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threatening of any proceeding 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 offeringpurpose.
f. 3.5 As promptly as practicable after becoming aware of such event, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a 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, misleading (“Registration Default”) and use its best all diligent efforts to promptly to 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 deliver such number of make available copies of such supplement or amendment to each 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; (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, or (v) if the Registration Statement is stale as such Investor may reasonably request.a result of the Company’s failure to timely file its financials or otherwise
g. 3.6 The Company shall use its best all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a 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 each the Investor who holds holding Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement.
h. 3.7 The Company shall permit a single firm of the Investor and one (1) legal counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being soldInvestor, to review and comment upon the Registration Statement(s) Statement and all amendments and supplements thereto a reasonable period of time at least one (1) calendar day prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence the Company is under no obligation to make changes to the Registration Statement and all amendments or supplements thereto based on comments from the Investor and its legal counsel. 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 make act to trigger any disclosure (except to an Investor) or use penalty of any Record kind, or other information which any cash amount due or any in-kind amount due the Investor from the Company determines in good faith to be confidential, under any and all agreements of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid any nature or correct a misstatement or omission in any Registration Statement, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 kind between the Company and allow the Company, at its expense, Investor. The event(s) of an Investor’s Delay shall act to undertake appropriate action to prevent disclosure of, suspend all obligations of any kind or to obtain a protective order for, the Records deemed confidential.
k. The Company shall hold in confidence and not make any disclosure nature of information concerning an Investor provided to the Company unless (i) disclosure under any and all agreements of such information is necessary to comply with federal any nature or state securities laws, (ii) kind between 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (NCM Financial), Registration Rights Agreement (Petron Energy II, Inc.)
RELATED OBLIGATIONS. a. (a) The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of on 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 Investors Investor shall have sold all the Registrable Securities and covered by such Registration Statement or (Bii) none the date that all of the Preferred Shares is outstanding Registrable Securities may be freely traded without registration under Rule 144(k) under the Securities Act or otherwise (the "“Registration Period")”) , which Registration Statement(s) 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement or as provided herein.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investorrequest).
d. (d) The Company shall use its commercially reasonable efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its articles of association, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm thereof or its receipt of counsel, designated as selling stockholders' counsel by the Investors who hold a majority actual notice of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants initiation or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use threat of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market proceeding 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 Securitiespurpose.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 2 contracts
Samples: Investor Registration Rights Agreement (Futuremedia PLC), Investor Registration Rights Agreement (Futuremedia PLC)
RELATED OBLIGATIONS. a. (a) The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors Investor shall have sold all the Registrable Securities and covered by such Registration Statement or (Bii) none of the Preferred Shares is outstanding Registrable Securities are eligible to be sold pursuant to Rule 144(k) under the 1933 Act (the "Registration Period"), which Registration Statement(s) 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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 "1934 Act"), the Company shall incorporate such report by reference into the Registration Statement(s)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 the Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to 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 InvestorsInvestor.
j. The (h) Upon five (5) days prior written notice by the Investor, which notice shall not be given more than one (1) time per calendar quarter, the Company shall make available for inspection by (i) any Investor, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investor (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (i) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (j) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (k) The Company shall cooperate with the Investors Investor who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Investor may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Investor may request. Not .
(l) The Company shall use 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 consummate the disposition of such Registrable Securities.
(m) The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 1933 Act) covering a twelve (12) month period beginning not later thxx xxx xirst day of the Company's fiscal quarter next following the effective date on which of the Registration Statement.
(n) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(o) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investor whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (p) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors Investor of Registrable Securities pursuant to a Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (iPOINT USA CORP), Registration Rights Agreement (iPOINT USA CORP)
RELATED OBLIGATIONS. a. (a) The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of on 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 Investors Investor shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "covered by such Registration Period")Statement, which Registration Statement(s) 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; or (ii) all Registrable Securities can be sold pursuant to Rule 144(k) (the “Registration Period”).
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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’s 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 incorporate such report by reference into the Registration Statement(s)Statement, if applicable, or shall file such amendments or supplements with the SEC within two days of the date on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its articles of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's ’s officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement or is otherwise required under the Securities 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (h) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's ’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (i) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (j) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(k) The Company shall use 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 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 one hundred five (105) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve (12) month period beginning not later than the first day of the Company’s fiscal quarter next following the effective date on which of the Registration Statement.
(m) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(n) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (o) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 2 contracts
Samples: Investor Registration Rights Agreement (Ignis Petroleum Group, Inc.), Investor Registration Rights Agreement (Ignis Petroleum Group, Inc.)
RELATED OBLIGATIONS. a. (a) The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors Investor shall have sold all the Registrable Securities and covered by such Registration Statement or (Bii) none of the Preferred Shares is outstanding Registrable Securities are eligible to be sold pursuant to Rule 144(k) under the 1933 Act (the "Registration Period"), which Registration Statement(s) 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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 "1934 Act"), the Company shall incorporate such report by reference into the Registration Statement(s)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 the Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to 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 InvestorsInvestor.
j. The (h) Upon five (5) days prior written notice by the Investor, which notice shall not be given more than one (1) time per calendar quarter, the Company shall make available for inspection by (i) any Investor, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investor (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (i) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (j) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (k) The Company shall cooperate with the Investors Investor who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Investor may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Investor may request. Not .
(l) The Company shall use 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 consummate the disposition of such Registrable Securities.
(m) The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 0000 Xxx) covering a twelve (12) month period beginning not later than the first day of the Company's fiscal quarter next following the effective date on which of the Registration Statement.
(n) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(o) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investor whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (p) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors Investor of Registrable Securities pursuant to a Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Neomedia Technologies Inc), Registration Rights Agreement (iPOINT USA CORP)
RELATED OBLIGATIONS. At such time as the Company is obligated to file 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, 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 applicable Registrable Securities (but in no event later than the Filing Deadline) and use its best efforts to cause such Registration Statement relating to the applicable Registrable Securities to become effective as soon as practicable after such filing (but in no event later than the Effectiveness Deadline). The Company shall use its best efforts to cause such keep each Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) (or successor thereto) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and covered by such Registration Statement (B) none of the Preferred Shares is outstanding (the each, a "Registration PeriodREGISTRATION PERIOD"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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(s)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 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 Current Reports on Form 8-K and any similar or successor reports) filed under and pursuant to this Agreement prior to their filing with the SEC. The Company shall 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 disclosures in the Registration Statement relating to (I) the Registrable Securities or the Preferred Shares or (II) the Investors. The Company shall 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 the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) upon the effectiveness of any Registration Statement, such number of copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents 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 such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. e. The Company shall use reasonable its best efforts to (i) register and qualify the cause such Registrable Securities covered to be registered with or approved by the Registration Statement(s) under such other securities governmental agencies or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United States), (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 jurisdictionspursuant to a Registration Statement; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d3(e), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 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 each Investor of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to Legal Counsel and each Investor as Legal Counsel or such Investor may reasonably request. The Company shall also promptly notify Legal Counsel and each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and each Investor by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 Legal Counsel and each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
i. The Company shall provide a transfer agent and registrar of all such Registrable Securities not later than the effective date on which of the applicable Registration Statement.
j. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
k. Within five (5) Business Days after a Registration Statement registering the resale of which covers applicable Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as EXHIBIT A.
n. l. The Company shall take all other reasonable actions reasonably necessary to expedite and facilitate disposition by the 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. a. At such time as the Company is obligated to file a Registration Statement with the SEC pursuant to SECTION 2(A) or SECTION 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, 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 (on or prior to the thirty seventh (37th) day after the date of issuance of the Note for the registration of Registrable Securities pursuant to SECTION 2(A)) and use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible after such filingfiling (but in no event later than 180 days after the Issuance Date, and keep the such Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), ) or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares Note or Warrants is outstanding (the "Registration Period"), which Registration Statement(s) 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" as used in the first sentence of this SECTION 3(a) shall mean, among other things, that the Company shall submit to the SEC, within two 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 the Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than 48 hours after the submission of such 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(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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 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 the Registration Statement(s)Statement.
c. (c) The Company shall permit Legal Counsel to review and comment upon a Registration Statement and all amendments and supplements thereto at least seven (7) days 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 at least 48 hours prior notice to the Investor and its Legal Counsel. 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 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 the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) such number upon the effectiveness of any Registration Statement, ten (10) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. . The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States states as the Investors who hold forty percent Legal Counsel or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided. Notwithstanding the foregoing, however, that the Company shall not be required to take any action described in connection therewith or as a condition thereto to (athis Section 3(e) qualify to do business in any jurisdiction where it in which the Company would not otherwise be required to qualify but for this Section 3(d), (b) subject itself to general taxation in any such jurisdiction, (c) file execute a general consent to service of process unless the Company is already subject to service in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to jurisdiction and except as may be required by the Company, or 1933 Act.
(e) make any change in its charter or bylaws, which in each case the Board of Directors The Company shall promptly notify Legal Counsel and Buyer who holds Registrable Securities of the receipt by the Company determines to be contrary of any notification with respect to the best interests suspension of the Company and its stockholders.
e. In the event Investors who hold a majority registration or qualification of any of the Registrable Securities being offered in for sale under the offering select underwriters securities or "blue sky" laws of any jurisdiction or its receipt of actual notice of the initiation or threatening of any proceeding 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 offeringpurpose.
f. (f) As promptly as practicable after becoming aware of such eventevent (but in no event later than one business day thereafter), the Company shall notify each Investor Legal Counsel and Buyer in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of copies one (1) copy of such supplement or amendment to Legal Counsel and each Investor (or such other number of copies as such Investor Legal Counsel or Buyer may reasonably request). The Company shall also promptly notify Legal Counsel and Buyer in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and Buyer by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (g) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor Legal Counsel and Buyer who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(h) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to 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 underwritersInvestors, 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. (i) The Company shall make available for inspection by (i) any Investor, (ii) any underwriter participating in any disposition pursuant to a Registration Statement, Legal Counsel and (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (collectively, the "Inspectors") all reasonably 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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless unless
(a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement, (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 (cb) 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)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. (j) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (k) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation . The Company shall pay all fees and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (iiexpenses in connection with satisfying its obligation under this SECTION 3(K), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. (l) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(m) The Company shall provide a transfer agent and registrar of all such Registrable Securities not later than the effective date on which of such Registration Statement.
(n) If requested by an Investor, the Company shall (i) immediately incorporate in a prospectus supplement or post-effective amendment such information as an Investor 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; (ii) make all required filings of such prospectus supplement or post-effective amendment as soon as 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 registering if requested by a Holder of such Registrable Securities.
(o) The Company shall use its best efforts to cause the resale 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 consummate the disposition of such Registrable Securities.
(p) 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 (in form complying with 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 the Registration Statement.
(q) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(r) Within two (2) business days after the Registration Statement which includes the Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that the Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as EXHIBIT A.
n. (s) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Altair International Inc), Registration Rights Agreement (Altair International Inc)
RELATED OBLIGATIONS. a. The With respect to the Registration Statement and whenever any Registrable Securities are to be registered pursuant to Sections 2(a) and (c), including on the Shelf Registration Statement or on any New Registration Statement, the Company shall use its best commercially reasonable efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep effect the Registration 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 registration of the Registrable Securities without restriction in accordance with the intended method of disposition thereof and, pursuant to Rule 144(k) promulgated under thereto, the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration 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.following obligations:
b. a. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Shelf Registration Statement(s) Statement and the prospectus(es) any New Registration Statement and any Prospectus used in connection with the such Registration Statement(s) Statement, as may be necessary to keep the Shelf Registration Statement(s) Statement or any New Registration Statement effective at all times during the Registration Period, subject to Permitted Delays and Section 3(e) hereof 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 the Shelf Registration Statement(s) Statement or any New 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 seller or sellers thereof as set forth in such Registration Statement. Should the Company file a post-effective amendment to the Shelf Registration Statement or a New Registration Statement, the Company will use commercially reasonable efforts to have such filing declared effective by the SEC within thirty (30) consecutive Business Days following the date of filing, which such period shall be extended for an additional thirty (30) Business Days if the Company receives a comment letter from the SEC in connection therewith. If (i) there is material non-public information regarding the Company which the Company’s Board of Directors reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Company’s Board of Directors reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement(sStatement, then the Company may postpone or suspend filing or effectiveness of such Registration Statement or use of the prospectus under the Registration Statement for a period not to exceed sixty (60) consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(a) for more than ninety (90) days in the aggregate during any twelve (12) month period (each, a “Permitted Delay”).
c. b. The Company shall submit to the Buyer for review and comment any disclosure in the Registration Statement, and all amendments and supplements thereto (other than prospectus supplements that consist only of a copy of a filed Form 20-F, Form 40-F, Form 10-K, Form 10-Q, Form 6-K, Form 8-K or any amendment as a result of the Company’s filing of a document that is incorporated by reference into the Registration Statement), containing information provided by the Buyer for inclusion in such document and any descriptions or disclosure regarding the Buyer, the Purchase Agreement, including the transaction contemplated thereby, or this Agreement at least two (2) Business Days prior to their filing with the SEC, and not file any document in a form to which Buyer reasonably and timely objects. Upon request of the Buyer, the Company shall provide to the Buyer all disclosure in the Registration Statement and all amendments and supplements thereto (other than prospectus supplements that consist only of a copy of a filed Form 20-F, Form 40-F, Form 10-K, Form 10-Q, Form 6-K, Form 8-K or any amendment as a result of the Company’s filing of a document that is incorporated by reference into a Registration Statement) at least two (2) Business Days prior to their filing with the SEC, and not file any document in a form to which Buyer reasonably and timely objects. The Buyer shall use commercially reasonable efforts to comment upon the Registration Statement or any New Registration Statement and any amendments or supplements thereto within two (2) Business Days from the date the Buyer receives the final version thereof. The Company shall furnish to each Investor whose Registrable Securities are included in the Buyer, without charge, any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to any Registration Statement(s) and its legal counsel Statement.
c. Upon request of the Buyer, the Company shall furnish to the Buyer, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including all financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) upon the effectiveness of any amendment(s) to a Registration Statement, a copy of the prospectus included in such number of copies of a prospectus, including a preliminary prospectus, Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as the Buyer may reasonably request) and (iii) such Investor other documents, including copies of any preliminary or final prospectus, as the Buyer may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investorthe Buyer.
d. The Company shall use reasonable best efforts to (i) register and qualify qualify, unless an exemption from registration and qualification is available, the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Buyer reasonably request (but in no event in more than five states of the United States)requests, (ii) subject to Permitted Delays, 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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Buyer who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. As e. Subject to Permitted Delays, as promptly as reasonably practicable after becoming aware of such eventevent or facts, the Company shall notify each Investor of the happening of any event, of which Buyer in writing if the Company has knowledge, as a result of which determined that the prospectus Prospectus included in a any 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, and use as promptly as reasonably practical (taking into account the Company’s good faith assessment of any adverse consequences to the Company and its best efforts promptly to shareholders of premature disclosure of such event or facts) prepare a prospectus supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and and, upon the Buyer’s request, deliver such number of copies a copy of such prospectus supplement or amendment to each Investor the Buyer. In providing this notice to the Buyer, the Company shall not include any other information about the facts underlying the Company’s determination and shall not in any way communicate any material nonpublic information about the Company or the Common Shares to the Buyer. The Company shall also promptly notify the Buyer in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Buyer by facsimile or e-mail on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to any Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate. In no event shall the delivery of a notice under this Section 3(e), or the resulting unavailability of a Registration Statement, without regard to its duration, for disposition of securities by Buyer be considered a breach by the Company of its obligations under this Agreement. The preceding sentence in this Section 3(e) does not limit whether an event of default has occurred as such Investor may reasonably requestset forth in Section 9(a) of the Purchase Agreement.
g. f. The Company shall use its best commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a any Registration Statement, or the suspension of the qualification of any 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 practical time and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) Buyer of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. g. The Company shall permit a single firm promptly secure the listing of counsel, designated as selling stockholders' counsel by the Investors who hold a majority all of the Registrable Securities being sold, (subject to review and comment upon the Registration Statement(sofficial notice of issuance) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriterU.S. Exchange and shall maintain such listing, if any, for sale in connection with the Registration Statement (i) if required by an underwriter, a letter, dated such date, from the Company's independent certified public accountants in form and substance so long 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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters (collectively, the "Inspectors") all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "Records"), as Common Shares shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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 agreementlisted. The Company shall not be required use commercially reasonable efforts to disclose any confidential information maintain the Common Shares’ listing on the U.S. Exchange in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) accordance with the requirements of this Agreement. Neither the Company with respect thereto, substantially nor any of its Subsidiaries shall take any action that would be reasonably expected to result in the form of this Section 3(j). Each Investor agrees that it shall, upon learning that disclosure of such Records is sought in delisting 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange on which securities suspension 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement Common Shares on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.U.S.
Appears in 2 contracts
Samples: Registration Rights Agreement (Titan Medical Inc), Registration Rights Agreement (Titan Medical Inc)
RELATED OBLIGATIONS. a. The (a) Unless and until Rule 144(k) becomes available with respect to the Registrable Securities, the Company shall use its best efforts to cause such keep any Registration Statement(s) relating to Statement which includes Investors’ Registrable Securities to become effective as soon as possible after such filing, and keep the Registration 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 Rule 144(k) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "“Registration Period"”), which Registration Statement(s) 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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’s 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 “Exchange Act”), the Company shall incorporate such report by reference into the Registration Statement(s).Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement. NYC:539442.5/her181-226414 5
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use its reasonable best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its articles of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. Notwithstanding any provision of this Agreement to the contrary, if the Company makes such a notification, the Company may suspend the use of any prospectus contained in any Registration Statement for periods not to exceed forty five (45) business days in any three month period or two periods not to exceed an aggregate of ninety (90) business days in any 12 month period in the event that the Company determines, in the exercise of its reasonable discretion, confirmed by a legal opinion from outside counsel, that sales of Registrable Securities thereunder could constitute violations of the Securities Act due to the Registration Statement containing 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. In each case the Company shall NYC:539442.5/her181-226414 6 use commercially reasonable efforts to remedy the deficiency in the Registration Statement within thirty (30) business days. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to 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 ’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. (h) The Company shall make available for inspection by (i) any Investor, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's ’s officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree in writing, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement or is otherwise required under the Securities 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to or the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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, NYC:539442.5/her181-226414 7 to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential.
k. (i) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's ’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (j) The Company shall use its reasonable best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion be included for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (k) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates to a transferee of an Investor (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(l) The Company shall use its reasonable 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 consummate the disposition of such Registrable Securities.
(m) The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve (12) month period beginning not later than the first day of the Company’s fiscal quarter next following the effective date on which of the Registration Statement.
(n) The Company shall otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. NYC:539442.5/her181-226414 8
(o) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (p) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. a. At such time as the Company is obligated to file a Registration Statement with the Commission pursuant to Section 14.1 hereof, 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, pursuant thereto, the Company shall have the following obligations (to the extent applicable):
(a) The Company shall use its best efforts submit to cause the Commission, within three (3) Business Days after the Company learns that no review of a particular Registration Statement will be made by the staff of the Commission 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(s) relating Statement to Registrable Securities to become effective as soon as possible a time and date not later than two Business Days after the submission of such filing, and request. The Company shall keep the each Registration Statement(s) Statement effective pursuant to Rule 415 at all times with respect to each Purchaser’s Registrable Securities until the earlier of (i) the date as of which the Investors may sell all expiration 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 Investors Reporting Period. The Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "ensure that each Registration Period"), which Registration Statement(s) 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 thereintherein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading.
b. (b) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) Statement effective at all times during the Registration Reporting 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement.
c. The (c) Upon request of a Purchaser, the Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel such Purchaser without charge, (i) promptly after the same Registration Statement including such Purchaser’s Registrable Securities is prepared and publicly distributed, filed with the SECCommission, or received at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, and if requested by the CompanyPurchaser, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and (or such other documents number of copies as the Purchaser may reasonably request) and (iii) such Investor other documents, including copies of any preliminary or final prospectus, as the Purchaser may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such InvestorSecurities.
d. (d) The Company shall use reasonable efforts to (i) register and qualify notify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions Purchasers in the United States as the Investors who hold forty percent or more writing of the Registrable Securities being offered reasonably request (but in no event in more than five states happening of the United States)any event, (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and upon request deliver such number of copies one copy of such supplement or amendment to each Investor the Purchasers (or such other number of copies as such Investor the Purchasers may reasonably request). Unless such information is publicly available, the Company shall also promptly notify the Purchasers in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Purchasers by email on the same day of such effectiveness), (ii) of any request by the Commission for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (e) The Company shall use its best commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor the Purchaser who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(f) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects[Reserved.]
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (ig) 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 [Reserved.]
(iih) 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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 the Purchasers provided to the Company unless and solely to the extent (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, jurisdiction or (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreementAgreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor the Purchasers is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor the Purchasers and allow such Investorthe Purchasers, at the Investor's each Purchaser’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order forpreventing disclosure of, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered Purchasers and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Purchasers may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Purchasers may request. Not later than .
(j) If requested by a Purchaser, the date on which Company shall, as soon as practicable, (i) incorporate in a prospectus supplement or post-effective amendment such information as the Purchaser reasonably 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 all required filings of such prospectus supplement or post-effective amendment 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 registering if reasonably requested by the resale Purchaser.
(k) The Company shall use commercially reasonable efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(l) The Company shall otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission in connection with any registration hereunder.
(m) Within two (2) Business Days after a Registration Statement that covers Registrable Securities is declared effectiveeffective by the Commission, the Company shall deliver to the transfer agent for such Registrable Securities (with copies to the Purchasers) confirmation that such Registration Statement has been declared effective by the Commission.
(n) Notwithstanding anything to the contrary herein, at any time after the Effectiveness Deadline, 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 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 Purchasers 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 Purchasers) and the date on which the Grace Period will begin, and (ii) notify the Purchasers in writing of the date on which the Grace Period ends; provided further, that the Grace Periods shall not exceed an aggregate of thirty (30) Trading Days during any 365-day period and the first day of any Grace Period must be at least fifteen (15) 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 Purchasers receive the notice referred to in clause (i) and shall end on and include the later of the date the Purchasers receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 14.4(e) 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 14.4(d) 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 instructions, accompanied by to deliver unlegended shares of Common Stock to a transferee of any reasonably required opinion Purchaser in accordance with the terms of counsel, that permit sales of unlegended securities this Agreement in a timely fashion that complies connection with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors any sale of Registrable Securities pursuant with respect to which a Purchaser has entered into a contract for sale, and delivered a copy of the prospectus included as part of the applicable Registration StatementStatement (unless an exemption from such prospectus delivery requirement exists), prior to the Purchaser’s receipt of the notice of a Grace Period and for which the Purchaser has not yet settled.
(o) Neither the Company nor any Subsidiary or Affiliate thereof shall identify any Purchaser as an underwriter in any public disclosure or filing with the Commission or any applicable Permitted Exchange without the prior written consent of such Purchaser, and any Purchaser being deemed an underwriter by the Commission shall not relieve the Company of any obligations it has under this Agreement.
Appears in 1 contract
Samples: Note Purchase Agreement (Allurion Technologies, Inc.)
RELATED OBLIGATIONS. a. The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of either (i) the date as of which the Investors may sell all of the Registrable Securities without restriction are eligible to be sold pursuant to Rule 144(k) promulgated 144 under the 1933 Act (or successor thereto)Act, or (ii) the date on which (A) the Investors Investor shall have sold all the Registrable Securities and (B) none of the Preferred Shares covered by such Registration Statement which ever period is outstanding shorter (the "Registration PeriodREGISTRATION PERIOD"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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 "1934 ACT"), the Company shall have incorporated such report by reference into the Registration Statement(s)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 the Registration Statement.
c. The Company shall furnish to each the Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement as declared effective by the SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Investor of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. e. As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each the Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify the Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each the Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. g. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldInvestor, the Company shall furnishfurnish to the Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as the 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 InvestorsInvestor.
j. h. The Company shall make available for inspection by (i) any Investor, the Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investor (collectively, the "InspectorsINSPECTORS") all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "RecordsRECORDS"), as shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and the Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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 agreementagreement of which the Inspector and the Investor has knowledge. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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. i. The Company shall hold in confidence and not make any disclosure of information concerning an the Investor provided to the Company 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 an the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such the Investor and allow such the Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. j. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. k. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, Investor to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Investor may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Investor may request. Not .
l. The Company shall use 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 consummate the disposition of such Registrable Securities.
m. The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with 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 on which of the Registration Statement.
n. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
o. Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investor) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as EXHIBIT A.
n. p. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors Investor of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Oxford Ventures Inc)
RELATED OBLIGATIONS. a. At such time as the Company is obligated to file a Registration Statement with the SEC pursuant to Section 2 or Section 3(p), the Company will use its reasonable 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 the Company shall have the following additional obligations:
(a) The Company shall use its reasonable best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times from the Effective Date until the earlier 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 Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "“Registration Period"”), which Registration Statement(s) Statement (including any amendments or supplements thereto and prospectuses contained therein), at the time it is first filed with the SEC, at the time it is ordered effective by the SEC and at all times during which it is required to be effective hereunder (and each such amendment and supplement at the time it is filed with the SEC and at all times during which it is available for use in connection with the offer and sale of the Registrable Securities) 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. If the Registration Statement is no longer effective during the Registration Period, the Company shall use its reasonable best efforts to cause a new Registration Statement to become effective pursuant to Section 2 or Section 3(p) as promptly as practicable.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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 “Exchange Act”), the Company shall have incorporated such report by reference into the Registration Statement(s)Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
c. (c) The Company shall permit Legal Counsel to review and comment upon (i) any 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 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 the Investors. The Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel 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 publicly distributed, filed with the SEC, or received 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 Companyeffectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and any amendment all amendments and supplements thereto.
(d) The Company shall furnish, without charge, to each preliminary prospectus and prospectus Investor selling Registrable Securities and each amendment or supplement theretounderwriter, and (ii) if any, such number of copies of a such Registration Statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such Registration Statement (including each preliminary prospectus and any summary prospectus, including a preliminary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, and all amendments each free writing prospectus utilized in connection therewith, in each case, in conformity with the requirements of the Securities Act, and supplements thereto and such other documents documents, as such Investor or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Investor.
d. (e) The Company shall use its reasonable best efforts to (i) register and qualify the cause such Registrable Securities covered to be registered with or approved by the Registration Statement(s) under such other securities governmental agencies or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United States), (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 jurisdictionspursuant to a Registration Statement; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (ai) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d3(e), (bii) subject itself to general taxation in any such jurisdiction, or (ciii) file a general consent to service of process in any such jurisdiction, .
(df) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change The Company shall notify Legal Counsel and each Investor in its charter or bylaws, which in each case the Board of Directors writing of the Company determines to be contrary to the best interests happening of the Company and its stockholders.
e. In the event Investors who hold a majority of the Registrable Securities being offered in the offering select underwriters for the offeringany event, 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 as promptly as practicable after becoming aware of such event, the Company shall notify each Investor of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to Legal Counsel and each Investor as Legal Counsel or such Investor may reasonably request. The Company shall also promptly notify Legal Counsel and each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and each Investor by email on the same day of such effectiveness and by overnight delivery), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (g) The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 at the earliest possible moment or suspension promptly and to notify Legal Counsel and each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(h) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to and facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(i) The Company shall appoint (if one has not already been appointed) and maintain a transfer agent and registrar for its Common Stock not later than the date on which Effective Date. The Company shall use reasonable best efforts to procure the cooperation of the Company’s transfer agent in settling any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by any Investor.
(j) The Company shall otherwise use its reasonable best efforts to comply (and continue to comply) with all applicable rules and regulations of the SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act);
(k) Within one (1) Business Day after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver or shall cause legal counsel for the Company to its deliver to the Company’s transfer agent instructions, accompanied confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionsthe SEC.
n. (l) The Company shall use commercially reasonable efforts to take all other reasonable actions reasonably necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Jaguar Health, Inc.)
RELATED OBLIGATIONS. a. At such time as the Company is obligated to file a Registration Statement with the SEC pursuant to Section 6.01 hereof, 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, pursuant thereto, the Company shall have the following obligations (to the extent applicable):
(a) The Company shall use its best efforts submit to cause the SEC, within three (3) 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(s) relating Statement to Registrable Securities to become effective as soon as possible a time and date not later than two Business Days after the submission of such filing, and request. The Company shall keep the each Registration Statement(s) Statement effective pursuant to Rule 415 at all times with respect to Investor’s Registrable Securities until the earlier of (i) the date as of which the Investors may sell all expiration 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 Investors Reporting Period. The Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "ensure that each Registration Period"), which Registration Statement(s) 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 thereintherein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) Statement effective at all times during the Registration Reporting 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement.
c. The (c) Upon request of Investor, the Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel without charge, (i) promptly after the same Registration Statement including Investor’s Registrable Securities is prepared and publicly distributed, filed with the SEC, or received at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, and if requested by the CompanyInvestor, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and (or such other documents number of copies as Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such InvestorSecurities.
d. (d) The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions notify Investor in the United States as the Investors who hold forty percent or more writing of the Registrable Securities being offered reasonably request (but in no event in more than five states happening of the United States)any event, (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and upon request deliver such number of copies one copy of such supplement or amendment to each Investor (or such other number of copies as such Investor may reasonably request). Unless such information is publicly available, the Company shall also promptly notify Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Investor by email on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (e) The Company shall use its best commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(f) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company unless and solely to the extent (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, jurisdiction or (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreementAgreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order forpreventing disclosure of, such information.
l. The Company shall use its best efforts either to (ig) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered Investor and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Investor may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Investor may request. Not later than .
(h) If requested by Investor, the date on which Company shall, as soon as practicable, (i) incorporate in a prospectus supplement or post-effective amendment such information as the Investor reasonably 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 all required filings of such prospectus supplement or post- effective amendment 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 registering if reasonably requested by Investor.
(i) The Company shall use commercially reasonable efforts to cause the resale Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(j) The Company shall otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(k) Within two (2) Business Days after a Registration Statement that covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver to its transfer agent instructionsthe Transfer Agent (with copies to Investor) confirmation that such Registration Statement has been declared effective by the SEC.
(l) Notwithstanding anything to the contrary herein, accompanied by at any reasonably required time after the Effectiveness Deadline, 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 Company’s Board of Directors 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 permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The the Company shall take all other reasonable actions necessary promptly (i) notify Investor 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 Investor) and facilitate disposition the date on which the Grace Period will begin, and (ii) notify Investor in writing of the date on which the Grace Period ends; provided further, that the Grace Periods shall not exceed an aggregate of thirty (30) Trading Days during any 365-day period and the first day of any Grace Period must be at least fifteen (15) 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 Investor receives the notice referred to in clause (i) and shall end on and include the later of the date Investor receives the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 6.03(e) 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 Investors first sentence of Section 6.03(d) 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 Transfer Agent to deliver unlegended shares of Common Stock to a transferee of Investor in accordance with the terms of this Agreement in connection with any sale of Registrable Securities pursuant with respect to which Investor has entered into a contract for sale, and delivered a copy of the prospectus included as part of the applicable Registration StatementStatement (unless an exemption from such prospectus delivery requirement exists), prior to Investor’s receipt of the notice of a Grace Period and for which Investor has not yet settled.
(m) Neither the Company nor any Subsidiary or Affiliate thereof shall identify Investor as an underwriter in any public disclosure or filing with the SEC or any applicable Permitted Exchange without the prior written consent of Investor, and Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has under this Agreement.
Appears in 1 contract
Samples: Subscription Agreement (Allurion Technologies, Inc.)
RELATED OBLIGATIONS. At such time as the Company is obligated to file a Registration Statement with the SEC pursuant to Section 2(a) or Section 2(e), the Company will use best efforts to effect the registration of the Registrable Securities to permit the intended method of disposition thereof and, 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 applicable Registrable Securities (but in no event later than the applicable Filing Deadline) and, if necessary, use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible reasonably practicable after such filing, and . The Company shall keep the each Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of on which the Investors may sell have sold all of the Registrable Securities without restriction covered 6 by such Registration Statement in accordance with such Registration Statement or pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), or 144 and (ii) the date on which (A) the Investors shall have sold that all the Registrable Securities have ceased to be Registrable Securities (the “Registration Period”). No Investor shall be named as an “underwriter” in the Registration Statement without such Investor’s prior written consent, except that an Investor may be named as a “statutory underwriter” if such Investor is, or is affiliated with, a broker dealer and states such fact in writing to the Company (unless such Investor represents in writing to the Company that (1) it purchased such securities in the ordinary course of business; and (B2) none at the time of purchase of the Preferred Shares is outstanding (securities being registered for resale, the "Registration Period"Investor had no agreements or understandings, directly or indirectly, with any person to distribute the securities), which it being understood that if such consent is withheld that until such consent is given, or no longer required to be given for the registration of the Investor’s Registrable Securities, such withholding of consent will waive the withholding Investor’s right to have their Commitment Fee Shares registered under this Agreement. Such Registration Statement(s) Statement (including any amendments or supplements thereto and prospectuses any Prospectuses (preliminary, final, summary or free writing)) contained therein) therein or related thereto 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 the light of the circumstances in which they were made, not misleading.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement(s) and the prospectus(es) used in connection with the Registration Statement(s) as may be necessary to keep the Registration 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 the Registration 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 seller or sellers thereof as set forth in the Registration Statement(s).
c. The Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of the Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United 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 (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Investor as such Investor may reasonably request.
g. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (New Fortress Energy Inc.)
RELATED OBLIGATIONS. a. At such time as the Company is obligated to file 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, 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 (on or prior to the 60/th/ day after the Closing Date and solely (unless otherwise consented to in writing by the Holder) for the registration of Registrable Securities pursuant to Section 2(a)) and use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, filing and keep the Registration Statement(s) effective pursuant to Rule 415 at all times until the earlier of (i) six months after the date as of which the Investors Holder may sell all of the Registrable Securities without restriction pursuant to Rule 144(k) promulgated under the 1933 Securities Act (or successor thereto), ) or (ii) the date on which (A) the Investors Holder shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement(s) and the prospectus(es) used in connection with the Registration Statement(s), which prospectus(es) are to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep the Registration Statement(s) 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 the Registration 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 seller or sellers thereof as set forth in the Registration Statement(s).
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) Holder and its legal counsel without charge (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the Registration Statement and any amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus(es) included in such Registration Statement(s) (including each preliminary prospectus prospectus) and, with regard to the Registration Statement, any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and prospectus and each amendment any correspondence from the SEC or supplement theretothe staff of the SEC to the Company or its representatives, and (ii) such number upon the effectiveness of any Registration Statement, ten copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as the Holder may reasonably request) and (iii) such Investor other documents, including any preliminary prospectus, as the Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investorthe Holder. The Company will promptly respond to any and all comments received from the SEC, with a view toward causing any Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall, subject to Section 3(h), promptly file an acceleration request as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that the Registration Statement or any amendment thereto will not be subject to review.
d. (d) The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Holder reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, . The Company shall promptly notify the Holder 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.
(de) provide any undertakings that cause more than nominal expense or burden In the event the Holder selects underwriters for the offering reasonably satisfactory to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines shall, subject to be contrary to the best interests of the Company and its stockholders.
e. In the event Investors who hold a majority of the Registrable Securities being offered in the offering select underwriters for the offeringSection 2(b) hereof, 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. (f) As promptly as practicable after becoming aware of such event, the Company shall notify each Investor the Holder in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such number of ten copies of such supplement or amendment to each Investor the Holder (or such other number of copies as such Investor the Holder may reasonably request). The Company shall also promptly notify the Holder in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Holder by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (g) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor the Holder who holds Registrable Securities being sold (orand, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. (h) The Company shall permit the Holder and a single firm of counsel, initially Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. or such other counsel as may thereafter be designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being soldHolder, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time at least four business days prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement(s) or any amendment or supplement thereto without the prior approval of such counsel, which consent shall not be unreasonably withheld.
i. (i) At the request of the Investors who hold a majority of the Registrable Securities being soldHolder, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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 InvestorsHolder.
j. (j) The Company shall make available for inspection by (i) any Investorthe Holder, (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the InvestorsHolder, and (iv) one firm of attorneys retained by all such underwriters (collectively, the "Inspectors") all such 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall agree to, and shall, hold in strict confidence and shall not make any disclosure (except to an Investorthe Holder) or use of any 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 StatementStatement or is otherwise required under the Securities 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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). Each Investor Holder 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. Nothing herein (or in any other confidentiality agreement between the Company and the Holder) shall be deemed to limit the Holder's ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and regulations.
k. (k) The Company shall hold in confidence and not make any disclosure of information concerning an Investor the Holder provided to the Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor the Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor the Holder and allow such Investorthe Holder, at the InvestorHolder's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (l) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation . The Company shall pay all fees and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (iiexpenses in connection with satisfying its obligation under this Section 3(l), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. (m) The Company shall cooperate with the Investors who hold Registrable Securities being offered Holder and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Holder may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Holder may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent the Exchange Notes Indenture Trustee instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated applicable securities settlement procedures for regular way market transactionsprocedures.
n. (n) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition provide a CUSIP number for the Registrable Securities not later than the effective date of such Registration Statement.
(o) If requested by the Investors managing underwriters or the Holder, the Company shall immediately incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriters and the Holder agree should be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities pursuant being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Securities to be sold in such offering; make all required filings of such prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and supplement or make amendments to any Registration Statement if requested by a shareholder or any underwriter of such Registrable Securities.
(p) The Company shall use its best efforts to cause the Registrable Securities covered by the applicable Registration StatementStatement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(q) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
Appears in 1 contract
Samples: Exchange Notes Registration Rights Agreement (Imperial Credit Industries Inc)
RELATED OBLIGATIONS. a. (a) The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of either (i) the date as of which the Investors may sell all of until the Registrable Securities without restriction are eligible to be sold pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto)Act, or (ii) the date on which (A) the Investors Investor shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "Registration Period"), which Registration Statement(s) 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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 "1934 Act"), the Company shall incorporate such report by reference into the Registration Statement(s)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 the Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to 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. (h) The Company shall make available for inspection by (i) any Investor, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (i) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (j) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (k) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(l) The Company shall use 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 consummate the disposition of such Registrable Securities.
(m) The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 1933 Act) covering a txxxxx (02) month period beginning not later than the first day of the Company's fiscal quarter next following the effective date on which of the Registration Statement.
(n) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(o) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (p) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Investor Registration Rights Agreement (Syndication Net Com Inc)
RELATED OBLIGATIONS. a. The With respect to the Registration Statement and whenever any Registrable Securities are to be registered pursuant to Sections 2(a) and (c), including on any New Registration Statement, the Company shall use its reasonable best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep effect the Registration 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 registration of the Registrable Securities without restriction in accordance with the intended method of disposition thereof and, pursuant to Rule 144(k) promulgated under thereto, the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration 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.following obligations:
b. a. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the any Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with the such Registration Statement(s) Statement, as may be necessary to keep the Registration Statement(s) Statement or any New Registration Statement effective at all times during the Registration Period, subject to Permitted Delays and Section 3(e) 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 the Registration Statement(s) Statement or any New 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 seller or sellers thereof as set forth in such Registration Statement. Should the Company file a post-effective amendment to the Registration Statement(sStatement or a New Registration Statement, the Company will use its reasonable best efforts to have such filing declared effective by the SEC within thirty (30) consecutive Business Days following the date of filing, which such period shall be extended for an additional thirty (30) Business Days if the Company receives a comment letter from the SEC in connection therewith. If (i) there is material non-public information regarding the Company which the Company’s Board of Directors reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Company’s Board of Directors reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under a Registration Statement or a New Registration Statement, then the Company may postpone or suspend filing or effectiveness of such Registration Statement or New Registration Statement or use of the prospectus under the Registration Statement or New Registration Statement for a period not to exceed thirty (30) consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(a) for more than sixty (60) days in the aggregate during any twelve (12) month period (each, a “Permitted Delay”).
c. b. The Company shall submit to the Buyer for review and comment any disclosure in the Registration Statement, any New Registration Statement and all amendments and supplements thereto (other than prospectus supplements that consist only of a copy of a filed Form 10-K, Form 10-Q or a Current Report on Form 8-K or any amendment as a result of the Company’s filing of a document that is incorporated by reference into the Registration Statement or New Registration Statement) containing information provided by the Buyer for inclusion in such document and any descriptions or disclosure regarding the Buyer, the Purchase Agreement, including the transaction contemplated thereby, or this Agreement at least two (2) Business Days prior to their filing with the SEC, and not file any document in a form to which Buyer reasonably and timely objects. Upon request of the Buyer, the Company shall provide to the Buyer all disclosure in the Registration Statement or any New Registration Statement and all amendments and supplements thereto (other than prospectus supplements that consist only of a copy of a filed Form 10-K, Form 10-Q or Current Report on Form 8-K or any amendment as a result of the Company’s filing of a document that is incorporated by reference into the Registration Statement or New Registration Statement) at least two (2) Business Days prior to their filing with the SEC, and not file any document in a form to which Buyer reasonably and timely objects, which consent shall not be unreasonably withheld, conditioned or delayed. The Buyer shall use its reasonable best efforts to comment upon the Registration Statement or any New Registration Statement and any amendments or supplements thereto within two (2) Business Days from the date the Buyer receives the final version thereof. The Company shall furnish to each Investor whose Registrable Securities are included in the Buyer, without charge, any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to the Registration Statement(s) and its legal counsel Statement or any New Registration Statement.
c. Upon request of the Buyer, the Company shall furnish to the Buyer, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) such number of copies upon the effectiveness of a prospectusRegistration Statement, including a preliminary prospectus, copy of the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as the Buyer may reasonably request) and (iii) such Investor other documents, including copies of any preliminary or final prospectus, as the Buyer may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investorthe Buyer.
d. The Company shall use reasonable best efforts to (i) register and qualify qualify, unless an exemption from registration and qualification is available, the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Buyer reasonably request (but in no event in more than five states of the United States)requests, (ii) subject to Permitted Delays, 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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Buyer who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. As e. Subject to Permitted Delays, as promptly as reasonably practicable after becoming aware of such eventevent or facts, the Company shall notify each Investor of the happening of any event, of which Buyer in writing if the Company has knowledge, as a result of which determined that the prospectus included in a any 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, and use as promptly as reasonably practical (taking into account the Company’s good faith assessment of any adverse consequences to the Company and its best efforts promptly to stockholders of premature disclosure of such event or facts) prepare a prospectus supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and and, upon the Buyer’s request, deliver such number of copies a copy of such prospectus supplement or amendment to each Investor the Buyer. In providing this notice to the Buyer, the Company shall not include any other information about the facts underlying the Company’s determination and shall not in any way communicate any material nonpublic information about the Company or the Common Stock to the Buyer. The Company shall also promptly notify the Buyer in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Buyer by facsimile or e-mail on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to any Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate. In no event shall the delivery of a notice under this Section 3(e), or the resulting unavailability of a Registration Statement, without regard to its duration, for disposition of securities by Buyer be considered a breach by the Company of its obligations under this Agreement. The preceding sentence in this Section 3(e) does not limit whether an event of default has occurred as such Investor may reasonably requestset forth in Section 9(a) of the Purchase Agreement.
g. f. The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a any Registration Statement, or the suspension of the qualification of any 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 practical time and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) Buyer of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. g. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by if the Registration Statement on the Nasdaq National Principal Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 term is defined in the Purchase Agreement) is an automated quotation system. The Company shall pay all fees and expenses in connection with respect to such Registrable Securitiessatisfying its obligation under this Section.
m. h. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, Buyer to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a any Registration Statement and enable such certificates to be in such denominations or amounts, amounts as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Buyer may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Buyer may request. Not later than .
i. The Company shall at all times provide a transfer agent and registrar with respect to its Common Stock.
j. If reasonably requested by the date on which Buyer, the Company shall (i) promptly incorporate in a prospectus supplement or post-effective amendment to the Registration Statement such information as the Buyer believes should 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 sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities; (ii) make all required filings of such prospectus supplement or post-effective amendment promptly 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 registering (including by means of any document incorporated therein by reference).
k. The Company shall use its reasonable best efforts to cause the resale of Registrable Securities covered by any Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary to consummate the disposition of such Registrable Securities.
l. Within one (1) Business Day after any Registration Statement is declared effectiveordered effective by the SEC, the Company shall deliver to its transfer agent instructionsthe Transfer Agent for such Registrable Securities (with copies to the Buyer) confirmation that such Registration Statement has been declared effective by the SEC in the form attached hereto as Exhibit A. Thereafter, accompanied if reasonably requested by the Buyer at any reasonably required opinion time, the Company shall deliver to the Buyer a written confirmation of counselwhether or not the effectiveness of such Registration Statement has lapsed at any time for any reason (including, that permit sales without limitation, the issuance of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures stop order) and whether or not the Registration Statement is currently effective and available to the Buyer for regular way market transactionssale of all of the Registrable Securities.
n. m. The Company shall agrees to take all other reasonable actions as necessary and reasonably requested by the Buyer to expedite and facilitate disposition by the Investors Buyer of Registrable Securities pursuant to a any Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. a. The (a) Unless and until Rule 144(k) becomes available with respect to the Registrable Securities, the Company shall use its best efforts to cause such keep any Registration Statement(s) relating to Statement which includes Investors' Registrable Securities to become effective as soon as possible after such filing, and keep the Registration 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 Rule 144(k) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "“Registration Period"”), which Registration Statement(s) 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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’s 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 “Exchange Act”), the Company shall incorporate such report by reference into the Registration Statement(s)Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use its reasonable best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its articles of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. Notwithstanding any provision of this Agreement to the contrary, if the Company makes such a notification, the Company may suspend the use of any prospectus contained in any Registration Statement for periods not to exceed forty five (45) business days in any three month period or two periods not to exceed an aggregate of ninety (90) business days in any 12 month period in the event that the Company determines, in the exercise of its reasonable discretion, confirmed by a legal opinion from outside counsel, that sales of Registrable Securities thereunder could constitute violations of the Securities Act due to the Registration Statement containing 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. In each case the Company shall use commercially reasonable efforts to remedy the deficiency in the Registration Statement within thirty (30) business days. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to 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 ’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. (h) The Company shall make available for inspection by (i) any Investor, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's ’s officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree in writing, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement or is otherwise required under the Securities 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to or the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (i) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's ’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (j) The Company shall use its reasonable best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion be included for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (k) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates to a transferee of an Investor (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(l) The Company shall use its reasonable 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 consummate the disposition of such Registrable Securities.
(m) The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve (12) month period beginning not later than the first day of the Company’s fiscal quarter next following the effective date on which of the Registration Statement.
(n) The Company shall otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(o) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (p) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. At such time as the Company is obligated to file 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, 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 (but in no event later than the Filing Deadline) and use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible practicable after such filing, and filing (but in no event later than the applicable Effectiveness Deadline). The Company shall keep the each Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), ) or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "Registration Period"), which Registration Statement(s) 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" as used in the first sentence of this Section 3(a) shall mean, among other things, that the Company shall submit to the SEC, within two 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 the Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than two business days after the submission of such request.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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(s)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 the Registration Statement.
c. The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, including financial statements and schedules, and all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number upon the effectiveness of any Registration Statement, ten (10) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such all other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United States), (ii) prepare and file in those jurisdictions jurisdictions, such amendments (including post-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 (aw) make any change in the Company's Certificate of Incorporation or by-laws that the Company's board of directors determines in good faith to be contrary to the best interests of the Company and its shareholders, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d3(e), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. e. As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor (or such other number of copies as such Investor may reasonably request). The Company shall also promptly notify each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor by facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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. g. The Company shall make available for inspection by (i) any Investor, (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters (collectively, the "Inspectors") Investor 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 to enable each Inspector to exercise its due diligence responsibilityInvestor, and cause the Company's officers, directors and employees to supply all information which any Inspector Investor may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall Investor hereby agrees to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors Investors are so notified, unless unless
(a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration StatementStatement 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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to agreement of which the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. h. The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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, or (v) such Investor consents to the form and content of any such disclosure. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. i. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on The Nasdaq SmallCap Market, the Nasdaq National Market System orThe American Stock Exchange, ifInc., despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 DealersThe New York Stock Exchange, Inc. ("NASD") as such The Company shall pay all fees and expenses in connection with respect to such Registrable Securitiessatisfying its obligation under this Section 3(i).
m. j. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
k. The Company shall provide a transfer agent and registrar of all such Registrable Securities not later than the effective date on which any of such Registration Statement registering the resale of Registrable Securities is declared effectiveStatement.
l. If requested by an Investor, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities (i) as soon as practicable incorporate in a timely fashion that complies prospectus supplement or post-effective amendment such information as an Investor requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with then mandated securities settlement procedures for regular way market transactionsrespect 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; and (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment.
m. The Company shall use 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 consummate the disposition of such Registrable Securities within the United States.
n. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
o. Within two (2) business days after a Registration Statement which covers applicable Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the SEC.
p. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
q. Notwithstanding anything to the contrary in Section 3(f), at any time after the applicable 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 (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 Periods shall exceed 30 consecutive days and during any consecutive 365 day period, such Grace Periods shall not exceed an aggregate of 45 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 Sections 2(f) and 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.
Appears in 1 contract
RELATED OBLIGATIONS. 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 file 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, 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 (on or prior to the thirtieth (30th) day after the date of issuance of any Preferred Shares for the registration of Registrable Securities pursuant to Section 2(a)) and use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible after such filingfiling (but in no event later than 60 days after the issuance of any Preferred Shares for the registration of Registrable Securities pursuant to Section 2(a)), and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), ) or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares or Warrants is outstanding (the "Registration PeriodREGISTRATION PERIOD"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the Registration Statement(s).
c. The Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of the Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United 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 (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Investor as such Investor may reasonably request.
g. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.intended
Appears in 1 contract
RELATED OBLIGATIONS. 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 file 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, 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 (on or prior to the Filing Deadline) for the registration of Registrable Securities pursuant to Section 2(a)) and use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filingfiling (by the one hundred and twentieth (120th) day following the issuance of the relevant for the registration of Registrable Securities pursuant to Section 2(a), and keep the Registration Statement(s) effective pursuant to Rule 415 at all times until the earlier later 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 Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration PeriodREGISTRATION PERIOD"), which Registration 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement(s) and the prospectus(es) used in connection with the Registration Statement(s), which prospectus(es) are to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep the Registration 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 the Registration 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 seller or sellers thereof as set forth in the Registration Statement(s).
c. The Company shall furnish to each Investor whose Registrable Securities are included in . In the Registration Statement(s) and its legal counsel (i) promptly after event the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy number of the shares available under a Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and filed pursuant to this Agreement is insufficient to cover all amendments and supplements thereto and such other documents as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United 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 (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
e. In the event Investors who hold a majority of the Registrable Securities being offered in the offering select underwriters for the offeringSecurities, the Company shall enter into and perform its obligations under an underwriting agreementamend 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 usual and customary formeach case, includingas soon as practicable, without limitation, customary indemnification and contribution obligations, with but in any event within thirty (30) days after the underwriters of such offering.
f. As promptly as practicable after becoming aware of such event, necessity therefor arises (based on the Company shall notify each Investor market price of the happening of any event, of Common Stock and other relevant factors on which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission reasonably elects 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Investor as such Investor may reasonably request.
g. rely). The Company shall use its best efforts to prevent cause such amendment and/or new Registration Statement to become effective as soon as practicable following the issuance filing thereof. For purposes of any stop order or other suspension the foregoing provision, the number of effectiveness of shares available under a Registration Statement, and, if such an order is issued, Statement shall be deemed "insufficient to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority cover all of the Registrable Securities" if at any time the number of Registrable Securities being sold, to review and comment issued or issuable upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request conversion of the Investors who hold a majority of Common Stock is greater than the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement quotient determined by dividing (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 number of such date, of counsel representing the Company Conversion Shares available for purposes of resale under 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 Statement by (i) any Investor, (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Bioshield Technologies Inc)
RELATED OBLIGATIONS. 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 file a Registration Statement with the SEC pursuant to Section 2(a) or 2(g), 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, 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 (on or prior to the thirtieth (30th) calendar day after the date hereof for the registration of Registrable Securities pursuant to Section 2(a)) and use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible after such filingfiling (but in no event later than the ninetieth (90th) calendar day after the date hereof for the registration of Registrable Securities pursuant to Section 2(a)), and keep the such Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), ) or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration ------------ Period"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement.
c. The Company shall permit Legal Counsel to review and comment upon a Registration Statement and all amendments and supplements thereto at least seven (7) days prior to their filing with the SEC (or such shorter period as Legal Counsel may agree), and not file any document 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) 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.
d. The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) such number upon the effectiveness of any Registration Statement, fifteen (15) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. e. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent Legal Counsel or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d3(e), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify Legal Counsel and each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of any of the Company and Registrable Securities for sale under the securities or "blue sky" laws of any jurisdiction in the United States or its stockholdersreceipt 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 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 and reasonable indemnification and contribution obligations, with the underwriters of such offering.
f. 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, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to 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 Legal Counsel and each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and each Investor by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. h. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 Legal Counsel and each Investor who holds Registrable Securities being sold (orand, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm thereof or its receipt of counsel, designated as selling stockholders' counsel by the Investors who hold a majority actual notice of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period initiation or threat of time prior to their filing with the SEC, and not file any document in a form to which proceeding for such counsel reasonably objectspurpose.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement (i) and thereafter from time to time on such dates as an Investor may reasonably request if required by an underwriter, (i) 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, (iiiiv) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (ivv) one firm of attorneys retained by all 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 for ------- each Inspector to enable each Inspector to exercise its due diligence responsibilitycarry out the purposes of this Agreement, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)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 Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System orMarket. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(l).
m. [Omitted.]
n. [Omitted].
o. If requested by the managing underwriters or an Investor, if, despite the Company's best efforts to satisfy the preceding clause Company shall (i) immediately incorporate in a prospectus supplement or (ii)post- effective amendment such information as the managing underwriters and the Investors agree should be included therein relating to the sale and distribution of Registrable Securities, the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market for such Registrable Securities andincluding, without limiting the generality of the foregoinglimitation, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and any other terms of the underwritten (or best efforts underwritten) 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 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 requested by a shareholder or any underwriter of such Registrable Securities.
m. p. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, use its best efforts to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing cause the Registrable Securities covered by the applicable Registration Statement to be offered pursuant registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
q. [Omitted.]
r. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder and the Company shall use its best efforts to file with the SEC in a timely manner all reports and documents required of the Company under the 1933 Act and the 1934 Act (as defined in Section 6(a)).
s. Within two (2) Business Days after the Registration Statement and enable such certificates to be in such denominations or amounts, as which includes the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that the Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionsthe form attached hereto as Exhibit A. ---------
t. [Omitted.]
n. u. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
v. Notwithstanding anything to the contrary contained in this Agreement, the Registration Statement (other than a Registration Statement filed pursuant to Section 2(b) above) shall register only the Registrable Securities.
Appears in 1 contract
RELATED OBLIGATIONS. a. The With respect to the Registration Statement and whenever any Registrable Securities are to be registered pursuant to Sections 2(a) and (c), including on the Shelf Registration Statement or on any New Registration Statement, the Company shall use its reasonable best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep effect the Registration 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 registration of the Registrable Securities without restriction in accordance with the intended method of disposition thereof and, pursuant to Rule 144(k) promulgated under thereto, the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration 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.following obligations:
b. a. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Shelf Registration Statement(s) Statement and the prospectus(es) any New Registration Statement and any Prospectus used in connection with the such Registration Statement(s) Statement, as may be necessary to keep the Shelf Registration Statement(s) Statement or any New Registration Statement effective at all times during the Registration Period, subject to Permitted Delays and Section 3(e) hereof 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 the Shelf Registration Statement(s) Statement or any New 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 seller or sellers thereof as set forth in such Registration Statement. Should the Company file a post-effective amendment to the Shelf Registration Statement or a New Registration Statement, the Company will use its reasonable best efforts to have such filing declared effective by the SEC within thirty (30) consecutive Business Days following the date of filing, which such period shall be extended for an additional thirty (30) Business Days if the Company receives a comment letter from the SEC in connection therewith. If (i) there is material non-public information regarding the Company which the Company’s Board of Directors reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Company’s Board of Directors reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement(sStatement, then the Company may postpone or suspend filing or effectiveness of such Registration Statement or use of the prospectus under the Registration Statement for a period not to exceed sixty (60) consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(a) for more than ninety (90) days in the aggregate during any twelve (12) month period (each, a “Permitted Delay”).
c. b. The Company shall submit to the Buyer for review and comment any disclosure in the Registration Statement, and all amendments and supplements thereto (other than prospectus supplements that consist only of a copy of a filed Form 10-K, Form 10-Q or Current Report on Form 8-K or any amendment as a result of the Company’s filing of a document that is incorporated by reference into the Registration Statement), containing information provided by the Buyer for inclusion in such document and any descriptions or disclosure regarding the Buyer, the Purchase Agreement, including the transaction contemplated thereby, or this Agreement at least two (2) Business Days prior to their filing with the SEC, and not file any document in a form to which Buyer reasonably and timely objects. Upon request of the Buyer, the Company shall provide to the Buyer all disclosure in the Registration Statement and all amendments and supplements thereto (other than prospectus supplements that consist only of a copy of a filed Form 10-K, Form 10-Q or Current Report on Form 8-K or any amendment as a result of the Company’s filing of a document that is incorporated by reference into a Registration Statement) at least two (2) Business Days prior to their filing with the SEC, and not file any document in a form to which Buyer reasonably and timely objects. The Buyer shall use its reasonable efforts to comment upon the Registration Statement or any New Registration Statement and any amendments or supplements thereto within two (2) Business Days from the date the Buyer receives the final version thereof. The Company shall furnish to each Investor whose Registrable Securities are included in the Buyer, without charge, any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to any Registration Statement(s) and its legal counsel Statement.
c. Upon request of the Buyer, the Company shall furnish to the Buyer, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including all financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) upon the effectiveness of any amendment(s) to a Registration Statement, a copy of the prospectus included in such number of copies of a prospectus, including a preliminary prospectus, Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as the Buyer may reasonably request) and (iii) such Investor other documents, including copies of any preliminary or final prospectus, as the Buyer may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investorthe Buyer.
d. The Company shall use reasonable best efforts to (i) register and qualify qualify, unless an exemption from registration and qualification is available, the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Buyer reasonably request (but in no event in more than five states of the United States)requests, (ii) subject to Permitted Delays, 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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Buyer who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. As e. Subject to Permitted Delays, as promptly as reasonably practicable after becoming aware of such eventevent or facts, the Company shall notify each Investor of the happening of any event, of which Buyer in writing if the Company has knowledge, as a result of which determined that the prospectus Prospectus included in a any 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, and use as promptly as reasonably practical (taking into account the Company’s good faith assessment of any adverse consequences to the Company and its best efforts promptly to shareholders of premature disclosure of such event or facts) prepare a prospectus supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and and, upon the Buyer’s request, deliver such number of copies a copy of such prospectus supplement or amendment to each Investor the Buyer. In providing this notice to the Buyer, the Company shall not include any other information about the facts underlying the Company’s determination and shall not in any way communicate any material nonpublic information about the Company or the Common Shares to the Buyer. The Company shall also promptly notify the Buyer in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Buyer by facsimile or e-mail on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to any Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate. In no event shall the delivery of a notice under this Section 3(e), or the resulting unavailability of a Registration Statement, without regard to its duration, for disposition of securities by Buyer be considered a breach by the Company of its obligations under this Agreement. The preceding sentence in this Section 3(e) does not limit whether an event of default has occurred as such Investor may reasonably requestset forth in Section 9(a) of the Purchase Agreement.
g. f. The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a any Registration Statement, or the suspension of the qualification of any 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 practical time and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) Buyer of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. g. The Company shall permit a single firm promptly secure the listing of counsel, designated as selling stockholders' counsel by the Investors who hold a majority all of the Registrable Securities being sold, (subject to review and comment upon the Registration Statement(sofficial notice of issuance) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriterU.S. Exchange and shall maintain such listing, if any, for sale in connection with the Registration Statement (i) if required by an underwriter, a letter, dated such date, from the Company's independent certified public accountants in form and substance so long 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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters (collectively, the "Inspectors") all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "Records"), as Common Shares shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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 agreementlisted. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's reasonable best efforts to satisfy maintain the preceding clause (i) or (ii), Common Shares’ listing on the U.S. Exchange in accordance with the requirements of this Agreement. Neither the Company is unsuccessful nor any of its Subsidiaries shall take any action that would be reasonably expected to result in satisfying the preceding clause (i) delisting or (ii), to secure suspension of the inclusion for quotation Common Shares on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.U.S.
Appears in 1 contract
Samples: Registration Rights Agreement (Aptose Biosciences Inc.)
RELATED OBLIGATIONS. a. (a) The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors Investor shall have sold all the Registrable Securities and covered by such Registration Statement or (Bii) none of the Preferred Shares is outstanding Registrable Securities are eligible to be sold pursuant to Rule 144(k) under the 1933 Act (the "Registration Period"), which Registration Statement(s) 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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 "1934 Act"), the Company shall incorporate such report by reference into the Registration Statement(s)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 the Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to 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 InvestorsInvestor.
j. The (h) Upon five (5) days prior written notice by the Investor, which notice shall not be given more than one (1) time per calendar quarter, the Company shall make available for inspection by (i) any Investor, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investor (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (i) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (j) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (k) The Company shall cooperate with the Investors Investor who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Investor may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Investor may request. Not .
(l) The Company shall use 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 consummate the disposition of such Registrable Securities.
(m) The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 1933 Act) covering a twelve (00) xxnth period beginning not later than the first day of the Company's fiscal quarter next following the effective date on which of the Registration Statement.
(n) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(o) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investor whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (p) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors Investor of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. a. The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors Investor shall have sold all the Registrable Securities and (B) none of covered by such Registration Statement or in the Preferred Shares event there are no Advance Notices, as this term is outstanding defined in the Standby Equity Distribution Agreement, if the Standby Equity Distribution Agreement is terminated (the "Registration Period"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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 "1934 Act"), the Company shall have incorporated such report by reference into the Registration Statement(s)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 the Registration Statement.
c. The Company shall furnish to each the Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement as declared effective by the SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of Investor reasonably requests on the Registrable Securities being offered reasonably request (but in no event in more than five states of the United States)date hereof, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Investor of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. e. As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify the Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus , and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each the Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. g. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldInvestor, the Company shall furnishfurnish to the Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as the Investor may reasonably request, so long as the standby equity Distribution Agreement has not been terminated (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 InvestorsInvestor.
j. The Company shall make available for inspection by (i) any Investor, (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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. h. The Company shall hold in confidence and not make any disclosure of information concerning an the Investor provided to the Company 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 an the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such the Investor and allow such the Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. i. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. j. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, Investor to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Investor may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Investor may request. Not .
k. The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 1933 Act) covering a twelve-month period beginning not later thxx xxx xxrst day of the Company's fiscal quarter next following the effective date on which of the Registration Statement.
l. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
m. Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied by any reasonably required opinion of counsel, for such Registrable Securities (with copies to the Investor) confirmation that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition such Registration Statement has been declared effective by the Investors of Registrable Securities pursuant to a Registration StatementSEC.
Appears in 1 contract
Samples: Registration Rights Agreement (Atc Healthcare Inc /De/)
RELATED OBLIGATIONS. a. (a) The Target Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors Seaside shall have sold all the Registrable Securities and (B) none covered by such Registration Statement or until the date on which, in the opinion of counsel to the Target Company, Seaside shall be entitled to sell all of the Preferred Shares is outstanding Registerable Securities pursuant to Rule 144 in one transaction (the "Registration Period"), which Registration Statement(s) 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.
b. (b) The Target Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 Target Company covered by the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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 Target Company's 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 "1934 Act"), the Target Company shall incorporate such report by reference into the Registration Statement(s)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 Target Company to amend or supplement the Registration Statement.
c. (c) The Target Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel Seaside, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as Seaside may reasonably request) and (iii) such other documents as such Investor Seaside may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such InvestorSeaside.
d. (d) The Target Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Seaside reasonably request (but in no event in more than five states of the United States)requests, (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 (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Target Company shall not be required in connection therewith or as a condition thereto to (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Target Company shall promptly notify Seaside of the receipt by the Target Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Target Company shall notify each Investor Seaside in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor as Seaside. The Target Company shall also promptly notify Seaside in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such Investor may reasonably requesteffectiveness shall be delivered to Seaside by facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Target Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Target Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) Seaside of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The (g) At the reasonable request of Seaside, the Target Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, furnish to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnishSeaside, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as Seaside may reasonably request (i) if required by an underwriter, a letter, dated such date, from the Target 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 Target 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 InvestorsSeaside.
j. (h) The Target Company shall make available for inspection by (i) any Investor, Seaside and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Seaside (collectively, the "Inspectors") all pertinent financial and other records, and pertinent corporate documents and properties of the Target Company (collectively, the "Records"), as shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Target Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and Seaside hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an InvestorSeaside) or use of any Record or other information which the Target 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 StatementStatement 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 agreementagreement of which the Inspector and Seaside has knowledge. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). Each Investor Seaside 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 Target Company and allow the Target 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Secured Diversified Investment LTD)
RELATED OBLIGATIONS. a. (a) The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of either (i) the date as of which the Investors may sell all of until the Registrable Securities without restriction are eligible to be sold pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto)Act, or (ii) the date on which (A) the Investors Investor shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "Registration Period"), which Registration Statement(s) 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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 "1934 Act"), the Company shall incorporate such report by reference into the Registration Statement(s)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 the Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to 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. (h) The Company shall make available for inspection by (i) any Investor, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (i) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (j) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (k) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(l) The Company shall use 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 consummate the disposition of such Registrable Securities.
(m) The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 1933 Act) covering a twelve (12) month period beginning not later than xxx xxxst day of the Company's fiscal quarter next following the effective date on which of the Registration Statement.
(n) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(o) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (p) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Investor Registration Rights Agreement (Syndication Net Com Inc)
RELATED OBLIGATIONS. 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 file a Registration Statement with the SEC pursuant to Section 2(a) or 2(g), 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, 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 (on or prior to the thirtieth (30th) calendar day after the date hereof for the registration of Registrable Securities pursuant to Section 2(a)) and use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible after such filingfiling (but in no event later than one-hundred twenty (120) calendar days after the date hereof for the registration of Registrable Securities pursuant to Section 2(a)), and keep the such Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), ) or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement.
c. The Company shall permit Legal Counsel to review and comment upon a Registration Statement and all amendments and supplements thereto at least seven (7) days prior to their filing with the SEC (or such shorter period as Legal Counsel may agree), and not file any document 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) 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.
d. The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) such number upon the effectiveness of any Registration Statement, fifteen (15) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. e. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent Legal Counsel or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d3(e), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify Legal Counsel and each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of any of the Company and Registrable Securities for sale under the securities or "blue sky" laws of any jurisdiction in the United States or its stockholdersreceipt 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 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 and reasonable indemnification and contribution obligations, with the underwriters of such offering.
f. 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, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to 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 Legal Counsel and each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and each Investor by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. h. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 Legal Counsel and each Investor who holds Registrable Securities being sold (orand, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm thereof or its receipt of counsel, designated as selling stockholders' counsel by the Investors who hold a majority actual notice of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period initiation or threat of time prior to their filing with the SEC, and not file any document in a form to which proceeding for such counsel reasonably objectspurpose.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement (i) and thereafter from time to time on such dates as an Investor may reasonably request if required by an underwriter, (i) 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, (iiiiv) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (ivv) one firm of attorneys retained by all 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 for each Inspector to enable each Inspector to exercise its due diligence responsibilitycarry out the purposes of this Agreement, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)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 Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. Market. The Company shall cooperate pay all fees and expenses in connection with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to satisfying its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionsobligation under this Section 3(l).
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. a. The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of either (i) the date as of which the Investors may sell all of until the Registrable Securities without restriction are eligible to be sold pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto)Act, or (ii) the date on which (A) the Investors Investor shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "Registration Period"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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 "1934 Act"), the Company shall have incorporated such report by reference into the Registration Statement(s)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 the Registration Statement.
c. The Company shall furnish to each the Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement as declared effective by the SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Investor of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. e. As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each the Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify the Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each the Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. g. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldInvestor, the Company shall furnishfurnish to the Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as the 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 InvestorsInvestor.
j. h. The Company shall make available for inspection by (i) any Investor, the Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investor (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and the Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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 agreementagreement of which the Inspector and the Investor has knowledge. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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. i. The Company shall hold in confidence and not make any disclosure of information concerning an the Investor provided to the Company 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 an the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such the Investor and allow such the Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. j. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. k. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, Investor to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Investor may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Investor may request. Not .
l. The Company shall use 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 consummate the disposition of such Registrable Securities.
m. The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 1933 Act) covering a twelxx-xxxxx period beginning not later than the first day of the Company's fiscal quarter next following the effective date on which of the Registration Statement.
n. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
o. Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investor) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. p. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors Investor of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Syndication Net Com Inc)
RELATED OBLIGATIONS. 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 file a Registration Statement with the SEC pursuant to Section 2(a) or 2(g), 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, 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 (on or prior to the thirtieth (30th) calendar day after the date of issuance of any Common Shares for the registration of Registrable Securities pursuant to Section 2(a)) and use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible after such filingfiling (but in no event later than one-hundred twenty (120) calendar days after the issuance of any Common Shares for the registration of Registrable Securities pursuant to Section 2(a)), and keep the such Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), ) or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement.
c. The Company shall permit Legal Counsel to review and comment upon a Registration Statement and all amendments and supplements thereto at least seven (7) days prior to their filing with the SEC (or such shorter period as Legal Counsel may agree), and not file any document 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) 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.
d. The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) such number upon the effectiveness of any Registration Statement, fifteen (15) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. e. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent Legal Counsel or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d3(e), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify Legal Counsel and each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of any of the Company and Registrable Securities for sale under the securities or "blue sky" laws of any jurisdiction in the United States or its stockholdersreceipt 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 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 and reasonable indemnification and contribution obligations, with the underwriters of such offering.
f. 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, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to 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 Legal Counsel and each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and each Investor by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. h. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 Legal Counsel and each Investor who holds Registrable Securities being sold (orand, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm thereof or its receipt of counsel, designated as selling stockholders' counsel by the Investors who hold a majority actual notice of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period initiation or threat of time prior to their filing with the SEC, and not file any document in a form to which proceeding for such counsel reasonably objectspurpose.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement (i) and thereafter from time to time on such dates as an Investor may reasonably request if required by an underwriter, (i) 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, (iiiiv) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (ivv) one firm of attorneys retained by all 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 for each Inspector to enable each Inspector to exercise its due diligence responsibilitycarry out the purposes of this Agreement, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)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 Company 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-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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. Market. The Company shall cooperate pay all fees and expenses in connection with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to satisfying its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionsobligation under this Section 3(l).
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. a. (a) The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), have been sold or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and become eligible for sale without restriction under Section 144 (Bk) none promulgated under the Securities Act of the Preferred Shares is outstanding 1933, as amended (the "Registration Period"), which Registration Statement(s) 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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 incorporate such report by reference into the Registration Statement(s)Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its articles of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to 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 (h) Upon five days written notice by the Investors, which notice shall not be given more than one (1) time per calendar quarter, the Company shall make available for inspection by (i) any Investor, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (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 to enable each Inspector to exercise its due diligence responsibilityverify the information contained in the Registration Statement and any amendments or supplements thereto, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement or is otherwise required under the Securities 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (i) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (j) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (k) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(l) The Company shall use 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 consummate the disposition of such Registrable Securities.
(m) The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve (12) month period beginning not later than the first day of the Company's fiscal quarter next following the effective date on which of the Registration Statement.
(n) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(o) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (p) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Investor Registration Rights Agreement (Gulf Coast Oil & Gas Inc.)
RELATED OBLIGATIONS. In connection with the registration of the Registrable Securities, the Company shall have the following obligations:
a. The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, but in no event later than the Registration Deadline, and keep the Registration Statement(s) effective pursuant to Rule 415 at all times until the earlier of (i) the date on which all of the Registrable Securities have been sold (and no further Registrable Securities may be issued in the future), (ii) the date as of which the Investors may immediately sell all of the Registrable Securities without restriction pursuant to Rule 144(k) 144 promulgated under the 1933 Act (or successor thereto)) or otherwise, or (iiiii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with the Registration Statement(s) Statement as may be necessary to keep the Registration Statement(s) 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 the Registration Statement(s) 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 seller or sellers thereof as set forth in the Registration Statement(sStatement. In the event the number of shares available under a Registration Statement filed pursuant to this Agreement is insufficient to cover all of the Registrable Securities issued or issuable upon conversion of the Preferred Shares, the Company shall amend 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 fifteen (15) days after the necessity therefor arises (based on the market price of the Common Stock and other relevant factors on which the Company reasonably elects to rely). The Company shall use its best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof.
c. The Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, (i) one copy of the Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement theretothereto in each case relating to such Registration Statement (other than any portion thereof which contains information for which the Company has sought confidential treatment) and, in the case of the Registration Statement referred to in Section 2(a), each letter written by or on behalf of the Company to the SEC or the staff of the SEC, and each item of correspondence from the SEC or the staff of the SEC, in each case relating to such Registration Statement; and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned (or to be owned) by such Investor.
d. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions in the United States as each Investor who holds (or has the Investors who hold forty percent or more of the right to hold) Registrable Securities being offered reasonably request (but in no event in more than five states of the United States)requests, (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Investor as such Investor may reasonably request.
g. f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
g. [Intentionally omitted.]
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldInvestor, but no more than two (2) times in any one ninety (90) day period, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of effectiveness of the Registration Statement and thereafter from time to time on such dates as the 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, if any, and to the Investor; and (ii) an opinion, dated as of such requested 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. i. The Company shall make available for inspection by (i) any Investor, (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance reasonably satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j3(i). 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. j. The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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-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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. k. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System NASDAQ Small Cap or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market OTC 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.
m. l. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver (at its expense) to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
m. The Company shall provide a transfer agent and registrar, which may be a single entity, for the Registrable Securities not later than the effective date of the Registration Statement.
n. The Company shall comply with all applicable laws relating to a Registration Statement and offering and sale of securities and all applicable rules and regulations of governmental authorities in connection therewith (including without limitation the 1933 Act and the Securities Exchange Act of 1934, as amended, and all the rules and regulations promulgated by the SEC).
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. a. At such time as the Company is obligated to file a Registration Statement with the SEC pursuant to SECTION 2(A) or SECTION 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, 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 (on or prior to the sixtieth (60th) day after the date of issuance of the Debenture for the registration of Registrable Securities pursuant to SECTION 2(A)) and use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible after such filingfiling (but in no event later than 150 days after the Issuance Date, and keep the such Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), ) or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares Debenture or Warrants is outstanding (the "Registration PeriodREGISTRATION PERIOD"), which Registration Statement(s) 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" as used in the first sentence of this SECTION 3(A) shall mean, among other things, that the Company shall submit to the SEC, within two 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 the Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than 48 hours after the submission of such 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(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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-KSB, Form 10-QSB or Form 8-K or any analogous report under the Securities Exchange Act of 1934, as amended (the "1934 ACT"), the Company 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 the Registration Statement(s)Statement.
c. (c) The Company shall permit Legal Counsel to review and comment upon a Registration Statement and all amendments and supplements thereto at least seven (7) days prior to their filing with the SEC, and not file any document 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) 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.
(d) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) such number upon the effectiveness of any Registration Statement, ten (10) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (e) The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent Legal Counsel or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 promptly notify Legal Counsel and Buyer who holds Registrable Securities of the receipt by the Company shall not be required in connection therewith or as a condition thereto to (a) qualify to do business in of any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threatening of any proceeding 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 offeringpurpose.
f. (f) As promptly as practicable after becoming aware of such eventevent (but in no event later than one business day thereafter), the Company shall notify each Investor Legal Counsel and Buyer in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of copies one (1) copy of such supplement or amendment to Legal Counsel and each Investor (or such other number of copies as such Investor Legal Counsel or Buyer may reasonably request). The Company shall also promptly notify Legal Counsel and Buyer in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and Buyer by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (g) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor Legal Counsel and Buyer who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(h) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to 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 underwritersInvestors, 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. (i) The Company shall make available for inspection by (i) any Investor, (ii) any underwriter participating in any disposition pursuant to a Registration Statement, Legal Counsel and (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (collectively, the "InspectorsINSPECTORS") all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "RecordsRECORDS"), as shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)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. (j) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (k) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation . The Company shall pay all fees and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (iiexpenses in connection with satisfying its obligation under this SECTION 3(K), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. (l) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(m) The Company shall provide a transfer agent and registrar of all such Registrable Securities not later than the effective date on which of such Registration Statement.
(n) If requested by an Investor, the Company shall (i) immediately incorporate in a prospectus supplement or post-effective amendment such information as an Investor 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; (ii) make all required filings of such prospectus supplement or post-effective amendment as soon as 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 registering if requested by a holder of such Registrable Securities.
(o) The Company shall use its best efforts to cause the resale 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 consummate the disposition of such Registrable Securities.
(p) 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 (in form complying with 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 the Registration Statement.
(q) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(r) Within two (2) business days after the Registration Statement which includes the Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that the Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as EXHIBIT A.
n. (s) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.. 7
Appears in 1 contract
Samples: Registration Rights Agreement (Global Telephone Communication Inc /Nv/)
RELATED OBLIGATIONS. a. The At such time as the Company shall is obligated to file a Registration Statement with the SEC pursuant to Section 2(a) the Company will use its best efforts to cause effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, pursuant thereto, the Company shall have the following obligations:
a. The Company shall submit to the SEC, within three (3) 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(sStatement to a time and date not later than forty-eight (48) relating to Registrable Securities to become effective as soon as possible hours after the submission of such filing, and request. The Company shall keep the each Registration Statement(s) 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 without restriction pursuant to Rule 144(k) (or any successor thereto) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors shall have sold all of the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "Registration Period"), which . The Company shall ensure that each Registration Statement(s) (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 thereintherein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement(sStatement 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-Q, Form 10-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 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 furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one (1) copy of the such Registration Statement and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by an Investor, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number upon the effectiveness of any Registration Statement, ten (10) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable its best efforts 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(s) Statement under such other securities or "blue sky" laws of such all applicable jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United States), (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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threatening of any proceeding for the offering, the such purpose.
e. The Company shall enter into and perform its obligations under an underwriting agreementnotify each Investor in writing of the happening of any event, in usual and customary form, including, without limitation, customary indemnification and contribution obligations, with the underwriters of such offering.
f. As as promptly as practicable after becoming aware of such event, the Company shall notify each Investor of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, and use its best efforts nonpublic information), and, subject to Section 3(n), promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor (or such other number of copies as such Investor may reasonably request). The Company shall also promptly notify each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective, (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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. g. The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. h. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
i. If requested by an Investor, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as an Investor reasonably 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) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by an Investor holding any Registrable Securities.
j. The Company shall use its best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
k. The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) 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 (12) month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of a Registration Statement.
l. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
m. Within two (2) Business Days after a Registration Statement which covers Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the SEC.
n. 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 (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 fifteen (15) consecutive days and during any Registration Statement registering three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of forty-five (45) days and the resale first day of Registrable Securities is declared effectiveany 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. Upon expiration of the Grace Period, the Company shall deliver again be bound by the first sentence of Section 3(d) 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 instructions, accompanied by to deliver unlegended Shares of Common Stock to a transferee of an Investor in accordance with the terms of the Subscription Agreement in connection with any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors 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 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 (Advanced Photonix Inc)
RELATED OBLIGATIONS. a. At such time as the Company is obligated to file a Registration Statement with the Commission pursuant to Section 9.01 of this Agreement, 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, pursuant thereto, the Company shall have the following obligations:
(a) The Company shall use its best efforts submit to cause the Commission, within three Business Days after the Company learns that no review of a particular Registration Statement will be made by the staff of the Commission 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(s) relating Statement to Registrable Securities to become effective as soon as possible a time and date not later than two Business Days after the submission of such filing, and request. The Company shall keep the each Registration Statement(s) Statement effective pursuant to Rule 415 at all times with respect to each Purchaser’s Registrable Securities until the earlier of (i) the date as of which the Investors may sell all expiration 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 Investors Reporting Period. The Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "ensure that each Registration Period"), which Registration Statement(s) 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 thereintherein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading.
b. (b) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) Statement effective at all times during the Registration Reporting 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement.
c. The (c) Upon request of the Purchaser, the Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel Purchaser without charge, (i) promptly after the same Registration Statement is prepared and publicly distributed, filed with the SECCommission, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, and if requested by the Purchaser, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number upon the effectiveness of the Registration Statement, 10 copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as the Purchaser may reasonably request) and (iii) such Investor other documents, including copies of any preliminary or final prospectus, as the Purchaser may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such InvestorSecurities.
d. (d) The Company shall use reasonable efforts to (i) register and qualify notify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions Purchaser in the United States as the Investors who hold forty percent or more writing of the Registrable Securities being offered reasonably request (but in no event in more than five states happening of the United States)any event, (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and upon request deliver such number of 10 copies of such supplement or amendment to each Investor the Purchaser (or such other number of copies as such Investor the Purchaser may reasonably request). Unless such information is publicly available, the Company shall also promptly notify the Purchaser in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Purchaser by facsimile or email on the same day of such effectiveness), (ii) of any request by the Commission for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (e) The Company shall use its best commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance Purchaser of such order and the resolution thereofthereof or its receipt of notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit (f) If a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, Purchaser is required under applicable securities law to review and comment upon be described in the Registration Statement(s) and all amendments and supplements thereto a Statement as an underwriter, at the reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldPurchaser, the Company shall furnishfurnish to the Purchaser, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as the Purchaser may reasonably request, (i) if required by an underwriter, a letter, dated such date, from the Company's ’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 underwritersPurchaser, 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 InvestorsPurchaser.
j. The (g) If the Purchaser is required under applicable securities law to be described in the Registration Statement as an underwriter, upon the written request of the Purchaser in connection with the Purchaser’s due diligence requirements, if any, the Company shall make available for inspection by (i) any Investor, the Purchaser and its legal counsel and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Purchaser (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 to enable each Inspector to exercise its solely for the purpose of establishing a due diligence responsibilitydefense under underwriter liability under the Securities Act, and cause the Company's ’s officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to an Investorthe Purchaser) or use of any 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 StatementStatement or is otherwise required under the Securities 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 Agreement or any other agreement. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). Each Investor Purchaser 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 forpreventing disclosure of, the Records deemed confidential. Nothing herein (or in any other confidentiality agreement between the Company and the Purchaser) shall be deemed to limit the Purchaser’s ability to sell Registrable Securities in a manner which is otherwise consistent with Applicable Laws.
k. (h) The Company shall hold in confidence and not make any disclosure of information concerning an Investor the Purchaser provided to the Company 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, 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 an Investor the Purchaser is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor the Purchaser and allow such Investorthe Purchaser, at the Investor's Purchaser’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order forpreventing disclosure of, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered Purchaser and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Purchaser may reasonably request and registered in such names name as the managing underwriter or underwriters, if any, or the Investors Purchaser may request. Not later than .
(j) If requested by a Purchaser, the date on which Company shall, as soon as practicable, (i) incorporate in a prospectus supplement or post-effective amendment such information as the Purchaser reasonably 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 all required filings of such prospectus supplement or post-effective amendment 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 registering if reasonably requested by the resale Purchaser.
(k) The Company shall use commercially reasonable efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(l) The Company shall otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission in connection with any registration hereunder.
(m) Within two Business Days after a Registration Statement that covers Registrable Securities is declared effectiveeffective by the Commission, the Company shall deliver to the transfer agent for such Registrable Securities (with copies to the Purchaser) confirmation that such Registration Statement has been declared effective by the Commission.
(n) Notwithstanding anything to the contrary herein, at any time after the Effectiveness 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 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 Purchaser 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 Purchaser) and the date on which the Grace Period will begin, and (ii) notify the Purchaser in writing of the date on which the Grace Period ends; and, provided further, that the Grace Periods shall not exceed an aggregate of 30 Trading Days during any 365-day period and the first day of any Grace Period must be at least 15 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 Purchaser receives the notice referred to in clause (i) and shall end on and include the later of the date the Purchaser receives the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 9.04(d) 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 9.04(c) 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 instructions, accompanied by to deliver unlegended shares of Common Stock to a transferee of the Purchaser in accordance with the terms of this Agreement in connection with any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors sale of Registrable Securities pursuant with respect to which the Purchaser has entered into a contract for sale, and delivered a copy of the prospectus included as part of the applicable Registration StatementStatement (unless an exemption from such prospectus delivery requirement exists), prior to the Purchaser’s receipt of the notice of a Grace Period and for which the Purchaser has not yet settled.
(o) Neither the Company nor any subsidiary or affiliate thereof shall identify the Purchaser as an underwriter in any public disclosure or filing with the Commission or any applicable Trading Market without the prior written consent of the Purchaser, and the Purchaser being deemed an underwriter by the Commission shall not relieve the Company of any obligations it has under this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cidara Therapeutics, Inc.)
RELATED OBLIGATIONS. The Company will use its best efforts to effect the registration of the Registrable Securities contemplated by Section 2 in accordance with the intended method of disposition thereof and, 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 (on or prior to the Scheduled Filing Date) for the registration of Registrable Securities pursuant to Section 2 and use its best efforts to cause such Registration Statement(s) Statements relating to the Registrable Securities to become effective as soon as possible after such filing, . The Company shall not file any other Registration Statement with respect to any of its securities between the date hereof and 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(s) 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 Holders may sell all of the Registrable Securities covered by such Registration Statement without restriction pursuant to Rule 144(k) promulgated under the 1933 Securities Act (or successor thereto), ) or (ii) the date on which (A) the Investors Holders shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "Registration Period"), which Registration Statement(s) 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.
b. . The Company term "best efforts" shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement(s) and the prospectus(es) used in connection with the Registration Statement(s) as may be necessary to keep the Registration Statement(s) effective at all times during the Registration Periodmean, 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 the Registration 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 seller or sellers thereof as set forth in the Registration Statement(s).
c. The Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of the Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such among other documents as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United 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 (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, howeverthings, that the Company shall not be required in connection therewith or as a condition thereto submit to (a) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Investor as such Investor may reasonably request.
g. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in within five business days after the Company learns that no review of a form to which such counsel reasonably objects.
i. At particular Registration Statement will be made by the request staff of the Investors who hold a majority of SEC or that the Registrable Securities being sold, the Company shall furnish, staff has no further comments on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably a request for acceleration of effectiveness of such Registration Statement to a time and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not date not later than 48 hours after the date on which any Registration Statement registering the resale submission of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionssuch request.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. 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 file a Registration Statement with the SEC pursuant to Section 2(a) or 2(g), 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, 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 (on or prior to the thirtieth (30th) calendar day after the date hereof for the registration of Registrable Securities pursuant to Section 2(a)) and use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible after such filingfiling (but in no event later than one-hundred twenty (120) calendar days after the date hereof for the registration of Registrable Securities pursuant to Section 2(a)), and keep the such Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), ) or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement.
c. The Company shall permit Legal Counsel to review and comment upon a Registration Statement and all amendments and supplements thereto at least seven (7) days prior to their filing with the SEC (or such shorter period as Legal Counsel may agree), and not file any document 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) 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.
d. The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) such number upon the effectiveness of any Registration Statement, fifteen (15) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. e. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent Legal Counsel or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d3(e), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Investor as such Investor may reasonably request.
g. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.such
Appears in 1 contract
RELATED OBLIGATIONS. a. At such time as the Company is obligated to file a Registration Statement with the Commission pursuant to Section 14.1 hereof, 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, pursuant thereto, the Company shall have the following obligations (to the extent applicable):
(a) The Company shall use its best efforts submit to cause the Commission, within three Business Days after the Company learns that no review of a particular Registration Statement will be made by the staff of the Commission 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(s) relating Statement to Registrable Securities to become effective as soon as possible a time and date not later than two Business Days after the submission of such filing, and request. The Company shall keep the each Registration Statement(s) Statement effective pursuant to Rule 415 at all times with respect to each Purchaser’s Registrable Securities until the earlier of (i) the date as of which the Investors may sell all expiration 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 Investors Reporting Period. The Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "ensure that each Registration Period"), which Registration Statement(s) 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 thereintherein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading.
b. (b) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) Statement effective at all times during the Registration Reporting 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement.
c. The (c) Upon request of a Purchaser, the Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel such Purchaser without charge, (i) promptly after the same Registration Statement including such Purchaser’s Registrable Securities is prepared and publicly distributed, filed with the SECCommission, or received at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, and if requested by the CompanyPurchaser, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and (or such other documents number of copies as the Purchaser may reasonably request) and (iii) such Investor other documents, including copies of any preliminary or final prospectus, as the Purchaser may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such InvestorSecurities.
d. (d) The Company shall use reasonable efforts to (i) register and qualify notify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions Purchasers in the United States as the Investors who hold forty percent or more writing of the Registrable Securities being offered reasonably request (but in no event in more than five states happening of the United States)any event, (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and upon request deliver such number of copies one copy of such supplement or amendment to each Investor the Purchasers (or such other number of copies as such Investor the Purchasers may reasonably request). Unless such information is publicly available, the Company shall also promptly notify the Purchasers in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Purchasers by email on the same day of such effectiveness), (ii) of any request by the Commission for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (e) The Company shall use its best commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor the Purchaser who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(f) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects[Reserved.]
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (ig) 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 [Reserved.]
(iih) 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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 the Purchasers provided to the Company unless and solely to the extent (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, jurisdiction or (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreementAgreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor the Purchasers is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor the Purchasers and allow such Investorthe Purchasers, at the Investor's each Purchaser’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order forpreventing disclosure of, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered Purchasers and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Purchasers may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Purchasers may request. Not later than .
(j) If requested by a Purchaser, the date on which Company shall, as soon as practicable, (i) incorporate in a prospectus supplement or post-effective amendment such information as the Purchaser reasonably 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 all required filings of such prospectus supplement or post-effective amendment 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 registering if reasonably requested by the resale Purchaser.
(k) The Company shall use commercially reasonable efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(l) The Company shall otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission in connection with any registration hereunder.
(m) Within two Business Days after a Registration Statement that covers Registrable Securities is declared effectiveeffective by the Commission, the Company shall deliver to the transfer agent for such Registrable Securities (with copies to the Purchasers) confirmation that such Registration Statement has been declared effective by the Commission.
(n) Notwithstanding anything to the contrary herein, at any time after the Effectiveness Deadline, 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 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 Purchasers 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 Purchasers) and the date on which the Grace Period will begin, and (ii) notify the Purchasers in writing of the date on which the Grace Period ends; and, provided further, that the Grace Periods shall not exceed an aggregate of 30 Trading Days during any 365-day period and the first day of any Grace Period must be at least 15 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 Purchasers receive the notice referred to in clause (i) and shall end on and include the later of the date the Purchasers receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 14.4(e) 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 14.4(d) 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 instructions, accompanied by to deliver unlegended Common Shares to a transferee of any reasonably required opinion Purchaser in accordance with the terms of counsel, that permit sales of unlegended securities this Agreement in a timely fashion that complies connection with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors any sale of Registrable Securities pursuant with respect to which a Purchaser has entered into a contract for sale, and delivered a copy of the prospectus included as part of the applicable Registration StatementStatement (unless an exemption from such prospectus delivery requirement exists), prior to the Purchaser’s receipt of the notice of a Grace Period and for which the Purchaser has not yet settled.
(o) Neither the Company nor any Subsidiary or Affiliate thereof shall identify any Purchaser as an underwriter in any public disclosure or filing with the Commission or any applicable Permitted Exchange without the prior written consent of such Purchaser, and any Purchaser being deemed an underwriter by the Commission shall not relieve the Company of any obligations it has under this Agreement.
Appears in 1 contract
Samples: Note Purchase Agreement (Milestone Pharmaceuticals Inc.)
RELATED OBLIGATIONS. a. At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section 1.2, the Company shall have the following obligations with respect to the Registration Statement:
(a) The Company shall use its best all commercially reasonable efforts to cause such Registration Statement(s) relating Statement to Registrable Securities to become remain effective as soon as possible after such filing, and keep the Registration 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 Rule 144(k) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "“Registration Period"”), which .
(b) The Registration Statement(s) 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 ten (10) business days from receipt of such comments by the Company.
b. (c) The Company shall use all commercially reasonable efforts to cause such Registration Statement to become effective no later than five (5) business days after notice from the SEC that the Registration Statement may be declared effective. Investors agree to provide in writing 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.
(d) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof Investors as set forth in the such Registration Statement(s)Statement.
c. (e) The Company shall furnish make available to each Investor whose Registrable Securities are included in the Registration Statement(s) Investors and its their legal counsel without charge (i) if requested by Investors, promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, SEC at least one (1) copy of the such Registration Statement and any amendment 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 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 prospectus and each amendment any correspondence from the SEC or supplement thereto, the staff of the SEC to the Company or its representatives; and (ii) such number upon the effectiveness of any Registration Statement, the Company shall make available copies of a the prospectus, including a preliminary prospectusvia EXXXX, included in such Registration Statement and all amendments and supplements thereto and such other documents as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investorthereto.
d. (f) The Company shall use commercially reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions states in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United States), request; (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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for its obligations under this Section 3(d)Agreement, or (by) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service . The Company shall promptly notify Investors of process in the receipt by the Company of any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threatening of any proceeding 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 offeringpurpose.
f. (g) As promptly as practicable after becoming aware of such event, the Company shall notify each Investor Investors in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a 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, misleading (“Registration Default”) and use its best all diligent efforts to promptly to 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 deliver such number of make available copies of such supplement or amendment to each Investor as such Investor may reasonably requestInvestors.
g. (h) The Company shall also promptly notify Investors (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 (Investors’ access to such documents via the SEC’s EXXXX website shall constitute sufficient notice hereunder); (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, or (v) if the Registration Statement is stale as a result of the Company’s failure to timely file its financials or otherwise.
(i) The Company shall use its best all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a 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 each any Investor who holds holding Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the Registration Statement.
h. (j) The Company shall permit a single firm of Investors and one (1) legal counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being soldInvestors, to review and comment upon the Registration Statement(s) Statement and all amendments and supplements thereto a reasonable period of time at least one (1) calendar day prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not consider in good faith any comments received from Investors and such designated legal counsel in connection with such review, but shall be required under no obligation to disclose any confidential information make revisions in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect response thereto, substantially in the form of this Section 3(j). 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. (k) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company Investors unless (i) in the opinion of the Company or upon the advice of its legal counsel, disclosure of such information is necessary to comply with federal or state securities laws, (ii) in the opinion of the Company or upon the advice of its legal counsel, 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, or (v) Investors has consented to such disclosure. The Company agrees that it shall, upon learning that disclosure of such information concerning an any Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the such Investor's ’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, covering such information.
l. (l) The Company shall use its best all commercially reasonable efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure maintain designation and quotation of all the Registrable Securities covered by the any Registration Statement on all markets on which the Nasdaq National Market System orCommon Stock is traded and shall pay all fees and expenses in connection therewith.
(m) 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.
(n) If requested by Investors, if, despite the Company's best efforts to satisfy the preceding clause Company shall (i) as soon as reasonably practical incorporate in a prospectus supplement or (ii)post-effective amendment such information as Investors reasonably determine should be included therein relating to the sale and distribution of Registrable Securities, the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market for such Registrable Securities andincluding, without limiting the generality of the foregoinglimitation, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such information with respect to such Registrable Securities.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery offering of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant sold in such offering; and (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 a be incorporated in such prospectus supplement or post-effective amendment.
(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 and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of includes Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver to its the transfer agent instructionsfor such Registrable Securities, accompanied by any reasonably required opinion of counselwith a copy to Investor, a written notification that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition such Registration Statement has been declared effective by the Investors of Registrable Securities pursuant to a Registration StatementSEC.
Appears in 1 contract
RELATED OBLIGATIONS. 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 file a Registration Statement with the SEC pursuant to Section 2(a) or 2(g), 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, pursuant thereto, the Company shall have the following obligations:
a. The Company shall promptly prepare and file (but in no event later than one hundred twenty (120) calendar days after the date hereof) with the SEC a Registration Statement with respect to the Registrable Securities for the registration of Registrable Securities pursuant to Section 2(a) and use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible after such filingfiling (but in no event later than two hundred ten (210) calendar days after the date hereof for the registration of Registrable Securities pursuant to Section 2(a)), and keep the such Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), ) or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares and Warrants is outstanding (the "Registration Period"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement.
c. The Company shall permit Legal Counsel to review and comment upon a Registration Statement and all amendments and supplements thereto at least seven (7) days prior to their filing with the SEC, and not file any document 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) 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.
d. The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) such number upon the effectiveness of any Registration Statement, ten (10) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. e. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent Legal Counsel or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d3(e), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify Legal Counsel and each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of any of the Company and Registrable Securities for sale under the securities or "blue sky" laws of any jurisdiction in the United States or its stockholdersreceipt 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 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. 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, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to 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 Legal Counsel and each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and each Investor by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. h. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 Legal Counsel and each Investor who holds Registrable Securities being sold (orand, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm thereof or its receipt of counsel, designated as selling stockholders' counsel by the Investors who hold a majority actual notice of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period initiation or threat of time prior to their filing with the SEC, and not file any document in a form to which proceeding for such counsel reasonably objectspurpose.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to 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, (iiiiv) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (ivv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)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 Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the The Nasdaq SmallCap Market 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.
m. . The Company shall cooperate pay all fees and expenses in connection with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to satisfying its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionsobligation under this Section 3(l).
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (E-Net Financial Com Corp)
RELATED OBLIGATIONS. a. The Company shall use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof, and, 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 all the Registrable Securities (but in no event later than the applicable Filing Deadline) and use its best efforts to cause such Registration Statement(s) relating to Registrable Securities Statement to become effective as soon as possible practicable after such filingfiling (but in no event later than the Effectiveness Deadline). Subject to Allowable Grace Periods, the Company shall keep each Registration Statement effective (and keep the Registration Statement(sprospectus contained therein available for use) effective 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 of (i) the date as of which all of the Investors may sell all of the Registrable Securities required to be covered by such Registration Statement (after giving effect to any reduction pursuant to Section 2(f)) without restriction pursuant to Rule 144(k144 (including, without limitation, volume restrictions) promulgated under and without the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration 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 misleadingneed for current public 8 Error! Unknown document property name.
b. The (b) Subject to Section 3(r) of this Agreement, 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(s) Statement and the prospectus(es) prospectus used in connection with each such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the each such Registration Statement(s) Statement effective at all times during the Registration PeriodPeriod for such Registration Statement, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company required to be covered by the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement; provided, however, by 8:30 a.m. (New York time) on the Business Day immediately following each Effective Date, the Company shall file with the SEC in accordance with Rule 424(b) under the 1933 Act the final prospectus to be used in connection with sales pursuant to the applicable Registration Statement(sStatement (whether or not such a prospectus is technically required by such rule). In the case of amendments and supplements to any Registration Statement which are required to be filed pursuant to this Agreement (including, without limitation, pursuant to this Section 3(b)) by reason of the Company filing a report on Form 8-K, Form 10-Q or Form 10-K or any analogous report under the Securities Exchange Act of 1934, as amended (the “1934 Act”), the Company shall, if permitted under the applicable rules and regulations of 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 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. 9 Error! Unknown document property name.
c. (c) The Company shall (A) permit Legal Counsel and legal counsel for each other Investor to review and comment upon (i) each Registration Statement at least five (5) Business Days prior to its filing with the SEC and (ii) all amendments and supplements to each Registration Statement (including, without limitation, the prospectus contained therein) (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-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 or any legal counsel for any other Investor reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement or any amendment or supplement thereto or to any prospectus contained therein without the prior consent of Legal Counsel, which consent shall not be unreasonably withheld. The Company shall promptly furnish to Legal Counsel and legal counsel for each other Investor, without charge, (i) copies of any correspondence from the SEC or the Staff to the Company or its representatives relating to each Registration Statement, provided that such correspondence shall not contain any material, non-public information regarding the Company or any of its Subsidiaries (as defined in the Securities Purchase Agreement), (ii) after the same is prepared and filed with the SEC, one (1) copy of each Registration Statement and any amendment(s) and supplement(s) thereto, including, without limitation, financial statements and schedules, all documents incorporated therein by reference, if requested by an Investor, and all exhibits and (iii) upon the effectiveness of each Registration Statement, one (1) copy of the prospectus included in such Registration Statement and all amendments and supplements thereto. The Company shall reasonably cooperate with Legal Counsel and legal counsel for each other Investor in performing the Company’s obligations pursuant to this Section 3. (d) The Company shall promptly furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, if requested by such Investor, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one (1) copy of the each Registration Statement and any amendment amendment(s) and supplement(s) thereto, including, without limitation, financial statements and schedules, all documents incorporated therein by reference, if requested by an Investor, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number upon the effectiveness of each Registration Statement, up to ten (10) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request from time to time) and (iii) such other documents, including, without limitation, copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United 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 (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholdersunless publicly available on XXXXX.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Investor as such Investor may reasonably request.
g. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file 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 method of disposition thereof and, with respect thereto, the Company shall have the following obligations:
a. The Company shall use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible within one hundred eighty (180) calendar days after the Filing Deadline and shall keep such filing, and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Securities Act (or successor thereto), or (ii) until the date on which (A) the Investors Holder shall have sold all the Registrable Securities or the shares included therein otherwise cease to be Registrable Securities, and (B) none of the Preferred Shares is outstanding Holder has no right to convert the securities it owns into Common Stock under the Subscription Agreement or Debenture, respectively (the "“Registration Period"”), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof Holder as set forth in such Registration Statement. In the Registration Statement(s).
c. The Company shall furnish to each Investor whose Registrable Securities are included in event the Registration Statement(s) and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy number of the shares of Common Stock available under a Registration Statement and filed pursuant to this Agreement is at any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and time insufficient to cover all amendments and supplements thereto and such other documents as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by Securities, the Company shall amend such Investor.
d. 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 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 Shares (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions as defined in the United States as Debenture) if at any time the Investors who 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 forty percent or more a shareholder’s meeting within thirty (30) calendar days for the sole purpose of authorizing additional shares of Common Stock to facilitate the Registrable Securities being offered reasonably request (but in no conversions. In such an event in more than five states of the United 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 (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 recommend to (a) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors all shareholders and management of the Company determines to be contrary to vote their shares in favor of increasing the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such authorized number of copies shares of such supplement or amendment Common Stock in sufficient number to each Investor as such Investor may reasonably request.
g. The Company shall use its best efforts to prevent fully cover the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (i) if required by an underwriter, a letter, dated such date, from the CompanyHolder'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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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 agreementconversion rights. The Company shall not be required represents and warrants that under no circumstances will it deny or prevent Holder’s right to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to convert the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 of such exchange, or (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market for such Registrable Securities and, without limiting the generality terms of the foregoingSubscription Agreement, this Agreement or any of the other Transaction Documents. The Holder retains the right to arrange for at least two market makers to register with request additional shares upon the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities.
m. The Company shall cooperate with determination the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, company may not be able to facilitate conversions in the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionsfuture.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Debenture Registration Rights Agreement (MassRoots, Inc.)
RELATED OBLIGATIONS. a. The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of either (i) the date as of which the Investors may sell all of the Registrable Securities without restriction are eligible to be sold pursuant to Rule 144(k) promulgated 144 under the 1933 Act (or successor thereto)Act, or (ii) the date on which (A) the Investors Investor shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement whichever period short (the "Registration Period"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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 "1934 Act"), the Company shall have incorporated such report by reference into the Registration Statement(s)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 the Registration Statement.
c. The Company shall furnish to each the Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement as declared effective by the SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Investor of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. e. As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each the Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify the Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each the Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. g. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldInvestor, the Company shall furnishfurnish to the Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as the 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 InvestorsInvestor.
j. h. The Company shall make available for inspection by (i) any Investor, the Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investor (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and the Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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 agreementagreement of which the Inspector and the Investor has knowledge. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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. i. The Company shall hold in confidence and not make any disclosure of information concerning an the Investor provided to the Company 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 an the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such the Investor and allow such the Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. j. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. k. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, Investor to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Investor may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Investor may request. Not .
l. The Company shall use 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 consummate the disposition of such Registrable Securities.
m. The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 1933 Act) covering a twelve-month period beginning not later than xxx xxxxt day of the Company's fiscal quarter next following the effective date on which of the Registration Statement.
n. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
o. Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investor) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. p. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors Investor of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. Whenever the Company is obligated to file a Registration Statement with the SEC pursuant to Section 2(a) or 2(g), 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, 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 (on or prior to the thirtieth (30th) day after the date of issuance of any Common Shares for the registration of Registrable Securities pursuant to Section 2(a)) and use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible after such filingfiling (but in no event later than ninety (90) days after the issuance of any Common Shares for the registration of Registrable Securities pursuant to Section 2(a)), and keep the such Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), ) or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement.
c. The Company shall permit Legal Counsel to review and comment upon a Registration Statement and all amendments and supplements thereto at least three (3) days prior to their filing with the SEC, and not file any document 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) 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.
d. The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) such number upon the effectiveness of any Registration Statement, ten (10) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. e. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent Legal Counsel or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d3(e), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify Legal Counsel and each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of any of the Company and Registrable Securities for sale under the securities or "blue sky" laws of any jurisdiction in the United States or its stockholdersreceipt 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 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. 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, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to 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 Legal Counsel and each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and each Investor by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. h. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 Legal Counsel and each Investor who holds Registrable Securities being sold (orand, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm thereof or its receipt of counsel, designated as selling stockholders' counsel by the Investors who hold a majority actual notice of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period initiation or threat of time prior to their filing with the SEC, and not file any document in a form to which proceeding for such counsel reasonably objectspurpose.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement (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, (iiiiv) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (ivv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)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 Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Small-Cap Market System orSystem. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(l).
m. [Reserved]
n. The Company shall provide a transfer agent and registrar of all such Registrable Securities not later than the effective date of such Registration Statement.
o. If requested by the managing underwriters or an Investor, if, despite the Company's best efforts to satisfy the preceding clause Company shall (i) immediately incorporate in a prospectus supplement or (ii)post-effective amendment such information as the managing underwriters and the Investors agree should be included therein relating to the sale and distribution of Registrable Securities, the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market for such Registrable Securities andincluding, without limiting the generality of the foregoinglimitation, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and any other terms of the underwritten (or best efforts underwritten) 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 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 requested by a shareholder or any underwriter of such Registrable Securities.
m. p. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, use its best efforts to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing cause the Registrable Securities covered by the applicable Registration Statement to be offered pursuant registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
q. [Reserved.]
r. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder and the Company shall use its best efforts to file with the SEC in a timely manner all reports and documents required of the Company under the 1933 Act and the 1934 Act (as defined in Section 6(a)).
s. Within three (3) business days after the Registration Statement and enable such certificates to be in such denominations or amounts, as which includes the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that the Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionsthe form attached hereto as Exhibit A.
t. [Reserved.]
n. u. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
v. Notwithstanding anything to the contrary contained in this Agreement, the Registration Statement shall register only the Registrable Securities.
Appears in 1 contract
RELATED OBLIGATIONS. The Company will use its best efforts to effect the registration of the Registrable Securities contemplated by Section 2 in accordance with the intended method of disposition thereof and, 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 (on or prior to the Scheduled Filing Date) for the registration of Registrable Securities pursuant to Section 2 and use its best efforts to cause such Registration Statement(s) Statements relating to the Registrable Securities to become effective as soon as possible after such filing, . The Company shall not file any other Registration Statement with respect to any of its securities between the date hereof and 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(s) 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 Holders may sell all of the Registrable Securities covered by such Registration Statement without restriction pursuant to Rule 144(k) promulgated under the 1933 Securities Act (or successor thereto), ) or (ii) the date on which (A) the Investors Holders shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "Registration Period"), which Registration Statement(s) 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 submit to the SEC, within five 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 the Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than 48 hours after the submission of such request.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement that 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-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 file such amendments or supplements with the SEC on the same day or as soon as practicably thereafter on which the Exchange Act report is filed that created the requirement for the Company to amend or supplement the Registration Statement(s)Statement.
c. The Company shall furnish to each Investor Holder whose Registrable Securities are included in any Registration Statement, without charge, upon the effectiveness of any Registration Statement(sStatement, ten (10) and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy copies of the prospectus included in such Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto (or such other number of copies as such Holder may reasonably request) and such other documents documents, including copies of any preliminary or final prospectus, as such Investor Holder may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such InvestorHolder.
d. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Holder reasonably request (but in no event in more than five states of the United States)requests, (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Holder who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threatening of any proceeding 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 offeringpurpose.
f. e. As promptly as practicable after becoming aware of such event, the Company shall notify each Investor Holder in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor Holder (or such other number of copies as such Investor Holder may reasonably request). The Company shall also promptly notify each Holder in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Holder by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor Holder who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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. g. The Company shall hold in confidence and not make any disclosure of information concerning an Investor Holder provided to the Company unless (i) disclosure of such information is necessary to comply with federal 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 an Investor Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor Holder and allow such InvestorHolder, at the InvestorHolder's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. h. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 or, if not, (ii) secure the designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market for if the Company then satisfies the applicable eligibility criteria of the Nasdaq Stock Market. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(l).
i. The Company shall provide a transfer agent and registrar of all such Registrable Securities and, without limiting not later than the generality effective date of such Registration Statement.
j. The Company shall use its best efforts to cause the foregoing, Registrable Securities covered by the applicable Registration Statement to arrange for at least two market makers be registered with or approved by such other governmental agencies or authorities as may be necessary to register with consummate the National Association disposition of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities.
m. k. The Company shall cooperate otherwise use its best efforts to comply with all applicable rules and regulations of the Investors who hold Registrable Securities being offered and, to the extent applicable, SEC in connection with any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates registration hereunder.
l. Within three (not bearing any restrictive legend3) representing the Registrable Securities to be offered pursuant to business days after a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of that covers applicable Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver to its the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Holders whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionsthe SEC.
n. m. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors Holders of Registrable Securities pursuant to a Registration Statement.
n. Notwithstanding anything to the contrary in Section 3(e), 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 Holders 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 Holders 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 45 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 Holders receive the notice referred to in clause (i) above and shall end on and include the date the Holders receive the notice referred to in clause (ii) above. Upon expiration of the Allowable Grace Period, the Company shall again be bound by the first sentence of Section 3(e) with respect to the information giving rise thereto.
Appears in 1 contract
Samples: Registration Rights Agreement (Algiers Resources Inc/Ny)
RELATED OBLIGATIONS. a. The Company will use its reasonable best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, pursuant thereto, the Company shall have the following obligations:
(a) The Company shall use its best 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(sStatement to a time and date not later than forty-eight (48) relating to Registrable Securities to become effective as soon as possible hours after the submission of such filing, and request. The Company shall keep the each Registration Statement(s) 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 without restriction pursuant to Rule 144(k144 (or any successor thereto) promulgated under the 1933 Securities Act (or successor thereto), or (ii) the date on which (A) the Investors shall have sold all of the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "“Registration Period"”), which . The Company shall ensure that each Registration Statement(s) 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 thereintherein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement(sStatement 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-Q, Form 10-K, or any analogous report under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company shall 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 Exchange Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by an Investor, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement thereto(unless such Registration Statement is available on XXXXX), and (ii) such number upon the effectiveness of any Registration Statement, copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto (in such number of copies as such Investor may reasonably request) (unless such amendments and supplements are available on XXXXX) and (iii) such other documents documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use its reasonable best efforts 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(s) Statement under such other securities or "“blue sky" ” laws of such all applicable jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United States), (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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of notice of the initiation or threatening of any proceeding for the offering, the such purpose.
(e) The Company shall enter into and perform its obligations under an underwriting agreementnotify each Investor in writing of the happening of any event, in usual and customary form, including, without limitation, customary indemnification and contribution obligations, with the underwriters of such offering.
f. As as promptly as practicable after becoming aware of such event, the Company shall notify each Investor of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, and use its best efforts nonpublic information), and, subject to Section 3(n), promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Investor (in such number of copies as Legal Counsel or such Investor may reasonably request) (unless such amendments and supplements are available on XXXXX). The Company shall also promptly notify each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor by facsimile on the next Business Day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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, 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's ’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (h) The Company shall use its reasonable best efforts either to (i) cause all of the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's ’s reasonable best efforts to satisfy the preceding clause (i) or (ii)efforts, the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation of all of the Registrable Securities on the Nasdaq SmallCap Market for such Registrable Securities and, without limiting the generality OTC Bulletin Board of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("“NASD") as such ”). The Company shall pay all fees and expenses in connection with respect to such Registrable Securitiessatisfying its obligation under this Section 3(h).
m. (i) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(j) If requested by an Investor, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as an Investor reasonably 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) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by an Investor holding any Registrable Securities.
(k) The Company shall use its reasonable best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to 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 ninety (90) 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 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 a Registration Statement.
(m) The Company shall otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(n) 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 in the best interest of the Company and 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 thirty (30) consecutive days and during any Registration Statement registering three hundred sixty-five (365) day period such Grace Periods shall not exceed an aggregate of sixty (60) days and the resale first day of Registrable Securities is declared effectiveany 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(e) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of the Grace Period, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition again be bound by the Investors first sentence of Registrable Securities pursuant Section 3(e) with respect to a Registration Statementthe information giving rise thereto unless such material, non-public information is no longer applicable.
Appears in 1 contract
Samples: Registration Rights Agreement (OptimumBank Holdings, Inc.)
RELATED OBLIGATIONS. The Company will use its best efforts to effect the registration of the Registrable Securities contemplated by Section 2 in accordance with the intended method of disposition thereof and, 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 (on or prior to the Scheduled Filing Date) for the registration of Registrable Securities pursuant to Section 2 and use its best efforts to cause such Registration Statement(s) Statements relating to the Registrable Securities to become effective as soon as possible after such filing, . The Company shall not file any other Registration Statement with respect to any of its securities between the date hereof and 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(s) 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 expiration 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 Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding Warrants (the "Registration Period"), which . The Registration Statement(s) 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 submit to the SEC, within five 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 the Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than 48 hours after the submission of such request.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement that 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-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 file such amendments or supplements with the SEC on the same day or as soon as practicably thereafter on which the Exchange Act report is filed that created the requirement for the Company to amend or supplement the Registration Statement(s)Statement.
c. The Company shall furnish to each Investor Holder whose Registrable Securities are included in any Registration Statement, without charge, upon the effectiveness of any Registration Statement(s) and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the CompanyStatement, one copy of the prospectus included in such Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto as such Holder may reasonably request and such other documents documents, including copies of any preliminary or final prospectus, as such Investor Holder may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such InvestorHolder.
d. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Holder reasonably request (but in no event in more than five states of the United States)requests, (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Holder who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threatening of any proceeding 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 offeringpurpose.
f. e. As promptly as practicable after becoming aware of such event, the Company shall notify each Investor Holder in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of copies one copy of such supplement or amendment to each Investor Holder (or such other number of copies as such Investor Holder may reasonably request). The Company shall also promptly notify each Holder in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Holder by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor Holder who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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. g. The Company shall hold in confidence and not make any disclosure of information concerning an Investor a Holder provided to the Company unless (i) disclosure of such information is necessary to comply with federal 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 an Investor Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor Holder and allow such InvestorHolder, at the InvestorHolder's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. h. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 or, if not, (ii) secure the designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market for if the Company then satisfies the applicable eligibility criteria of the Nasdaq Stock Market. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(h).
i. The Company shall provide a transfer agent and registrar of all such Registrable Securities and, without limiting not later than the generality effective date of such Registration Statement.
j. The Company shall use its best efforts to cause the foregoing, Registrable Securities covered by the applicable Registration Statement to arrange for at least two market makers be registered with or approved by such other governmental agencies or authorities as may be necessary to register with consummate the National Association disposition of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities.
m. k. The Company shall cooperate otherwise use its best efforts to comply with all applicable rules and regulations of the Investors who hold Registrable Securities being offered and, to the extent applicable, SEC in connection with any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates registration hereunder.
l. Within three (not bearing any restrictive legend3) representing the Registrable Securities to be offered pursuant to business days after a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of that covers applicable Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver to its the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Holders whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionsthe SEC.
n. m. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors Holders of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Critical Home Care Inc)
RELATED OBLIGATIONS. a. The Upon a request by the holders of Registrable Securities that any Registrable Securities be registered pursuant to the provisions of this Agreement, the Company shall use its best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company shall:
a. within the time periods set forth in Section 2, prepare and file with the SEC (or confidentially submit in draft form to the SEC) a Registration Statement with respect to such Registrable Securities and use its best efforts to cause such Registration Statement(s) relating to Registrable Securities Statement to become effective as soon as possible after such filing, and keep the Registration 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 Rule 144(k) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration 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.effective;
b. The Company shall as promptly as practicable, prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the update such Registration Statement(s) effective Statement at all times during a period of not less than 120 days (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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement that are required to be filed pursuant to this Agreement (including pursuant to this Section) by reason of the Company's filing of an Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K or any analogous report under the Exchange Act, the Company shall have incorporated such report by reference into the Registration Statement(s).Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed that created the requirement for the Company to amend or supplement the Registration Statement;
c. The Company shall as soon as practicable, furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement as declared effective by the SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents as each Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.;
d. The Company shall as soon as practicable, use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United States)request, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d)Section, (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Investors of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding for the offeringsuch purpose;
e. as soon as practicable, 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 eventevent or development, notify the Company shall notify each Investor Investors in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor (or such other number of copies as such Investor may reasonably request.
g. ). The Company shall also promptly notify the Investors in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Investors by electronic transmission on the day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate;
f. use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) Investors of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm thereof or its receipt of counsel, designated as selling stockholders' counsel by the Investors who hold a majority actual notice of the Registrable Securities being soldinitiation or threat of any proceeding for such purpose;
g. as soon as practicable, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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, the Investors and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (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 to enable each Inspector them to exercise its their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which that any Inspector may reasonably request for purposes in connection with the Registration Statement. Each Investor agrees that Records obtained by it as a result of such due diligence; provided, however, inspections that each Inspector are conspicuously marked by the Company as “Confidential” (subject to the Company's obligations with respect to material nonpublic information set forth in Section 8(a) herein) shall hold be deemed confidential and held in strict confidence and shall not make any disclosure (except to an Investor) or use of any Record or other information which by the Company determines in good faith to be confidential, and of which determination the Inspectors are so notifiedInvestors, unless (ax) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration StatementStatement or is otherwise required under the Securities Act, (by) 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 (cz) the information in such Records has been made generally available to the public other than by disclosure in violation breach of this or any other agreement. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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 (to the extent permitted by law) 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 h. hold in confidence and not make any disclosure of information concerning an Investor the Investors provided to the Company 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 breach of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such the Investor (to the extent permitted by law) and allow such the Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.;
l. The Company shall i. use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market for of such Registrable Securities and, without limiting on the generality highest tier of the foregoing, OTC Markets Group reasonably available 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.
m. Company. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section;
j. cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) or book-entry security entitlements representing the Registrable Securities to be offered pursuant to a Registration Statement;
k. use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement and enable such certificates to be in registered with or approved by such denominations other governmental agencies or amounts, authorities as may be necessary to consummate the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in disposition of such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registrable Securities;
l. within three business days after a Registration Statement registering the resale of covering Registrable Securities is declared effectiveeffective by the SEC, deliver, and cause legal counsel for the Company shall deliver to its deliver, to the transfer agent instructionsfor such Registrable Securities (with copies to the Investors) confirmation that such Registration Statement has been declared effective by the SEC;
m. in connection with an underwritten offering, accompanied by any reasonably required opinion enter into such customary agreements on market terms (including underwriting and lock-up agreements in customary form) and take all such other customary actions as the holders of counselsuch Registrable Securities or the managing underwriter of such offering request in order to expedite or facilitate the disposition of such Registrable Securities (including, that permit sales without limitation, making appropriate officers of unlegended securities the Company available to participate in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.“road show” and other customary marketing activities; and
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. a. The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors Investor shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "Registration Period"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the Registration Statement(s) effective required by law 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. Notwithstanding any provision herein to the contrary, the Company shall not be deemed to be in violation of this Section 3(b) or any other provision of this Agreement if, at any time other than the time between an Advance Notice Date and the related Advance Date, the Company delivers to the Investor a notice (a "Suspension Notice") indicating that the Investor must suspend the use of any Registration Statement(sStatement while the Company either amends or supplement such Registration Statement or files a new Registration Statement, provided that (i) the Company determines, upon advice of counsel, that such suspension is appropriate under applicable securities laws and (ii) the Company promptly seeks to take such action as it determines to be appropriate under such laws to enable the disposition of the Registrable Securities by the Investor. The Investor shall refrain from disposing of any Registrable Securities upon receipt of a Suspension Notice delivered in accordance with this Section 3(b).. In the case of amendments and supplements to
c. The Company shall furnish to each the Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement as declared effective by the SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Investor of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. e. As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each the Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify the Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each the Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. g. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldInvestor, the Company shall furnishuse its best efforts to furnish to the Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as the 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 InvestorsInvestor.
j. The h. To the extent permitted by the Standby Equity Distribution Agreement, the Company shall make available for inspection by (i) any Investor, the Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investor (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and the Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless unless
(a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement, (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 (cb) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreementagreement of which the Inspector and the Investor has knowledge. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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. i. The Company shall hold in confidence and not make any disclosure of information concerning an the Investor provided to the Company 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 an the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such the Investor and allow such the Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. j. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. k. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, Investor to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Investor may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Investor may request. Not .
l. The Company shall use 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 consummate the disposition of such Registrable Securities.
m. The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with 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 on which of the Registration Statement.
n. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
o. Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investor) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. p. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors Investor of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. a. The Company shall use its best efforts to cause such keep a Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of on which the Investors may sell Holders shall have sold all of the Registrable Securities without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), covered by such Registration Statement or (ii) the date on which (A) all of the Investors shall have sold all the 2 3 Registrable Securities and (B) none of the Preferred Shares is outstanding may be sold pursuant to Rule 144 (the "Registration PeriodREGISTRATION PERIOD"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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(s)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 the Registration Statement.
c. The Company shall furnish to each Investor Holder whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement as declared effective by the SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Holder may reasonably request) and (iii) such other documents as such Investor Holder may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such InvestorHolder.
d. The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions (up to 10) in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Holder reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, jurisdiction or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Holder who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters for the offering, the Company shall enter into and perform United States or its obligations under an underwriting agreement, in usual and customary form, including, without limitation, customary indemnification and contribution obligations, with the underwriters receipt of such offering.
f. As promptly as practicable after becoming aware actual notice of such event, the Company shall notify each Investor of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Investor as such Investor may reasonably request.
g. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.the
Appears in 1 contract
Samples: Registration Rights Agreement (Advanced Viral Research Corp)
RELATED OBLIGATIONS. a. (a) The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), or (iiA) the date on which (A) the Investors Investor shall have sold all the Registrable Securities and covered by such Registration Statement or (B) none the date on which the Registrable Securities may be sold without any volume restrictions pursuant to Rule 144(k) of the Preferred Shares is outstanding Securities Act (the "Registration Period"), which Registration Statement(s) 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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 incorporate such report by reference into the Registration Statement(s)Statement, if applicable, or shall file such amendments or supplements with the SEC but in no event later than ten (10) days after the date on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
c. (c) The Company shall furnish or make available to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use its commercially reasonable efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its articles of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of or make available ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement or is otherwise required under the Securities 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (h) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (i) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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, listed or (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (j) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legendlegend so long as the issuance of such shares is in connection with a sale transaction and the prospectus delivery requirements have been met) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(k) The Company shall use 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 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 ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve (12) month period beginning not later than the first day of the Company's fiscal quarter next following the effective date on which of the Registration Statement.
(m) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(n) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (o) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Investor Registration Rights Agreement (Startech Environmental Corp)
RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file 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 method of disposition thereof and, with respect thereto, the Company shall have the following obligations:
a. The Company shall use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible within ninety calendar days after the Issue Date and shall keep such filing, and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Securities Act (or successor thereto), or (ii) until the date on which (A) the Investors Holder shall have sold all the Registrable Securities and (B) none of or the Preferred Shares is outstanding included therein otherwise cease to be Registrable Securities (the "“Registration Period"”), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof Holder as set forth in such Registration Statement. In the Registration Statement(s).
c. The Company shall furnish to each Investor whose Registrable event the number of shares of Securities are included in the Registration Statement(s) and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of the available under a Registration Statement and filed pursuant to this Agreement is at any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and time insufficient to cover all amendments and supplements thereto and such other documents as such Investor may reasonably request in order to facilitate the disposition 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 Securities owned by 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 Investor.
d. shares are authorized. The Company shall use reasonable it best efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under cause such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United 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 (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the and/or new Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Investor become effective as such Investor may reasonably request.
g. The Company shall use its best efforts to prevent soon as practicable following the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution filing thereof.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Greater Cannabis Company, Inc.)
RELATED OBLIGATIONS. At such time as the Company is obligated to file a Registration Statement with the SEC pursuant to Sections 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, 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 applicable Registrable Securities (as soon as practicable but in no event later than the applicable Filing Deadline) and use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible practicable after such filing, and . The Company shall keep the each Registration Statement(s) 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 without restriction pursuant to Rule 144(k) 144, Rule 145 or any other available exemption, each promulgated under the 1933 Act (or successor thereto), ) or any other available exemption or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "Registration Period"), which Registration Statement(s) Statement (including any amendments or supplements thereto and prospectuses contained therein) ), to the knowledge of the Company, 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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(s)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 the Registration Statement.
c. The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) upon the effectiveness of any such number of Registration Statement, ten (10) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests and as required, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. e. As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor (or such other number of copies as such Investor may reasonably request). The Company shall also promptly notify each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective, (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. f. The Company shall use its best reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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. g. The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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, or (v) consented to by such Investor. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. h. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than .
i. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the date on which SEC in connection with any registration hereunder.
j. Within two (2) business days after a Registration Statement registering the resale of which covers applicable Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructionsfor such Registrable Securities (with copies to the 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.
k. Notwithstanding anything to the contrary in Section 3(e), accompanied at any time after the applicable Registration Statement has been declared effective by any reasonably required 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 (a "Grace Period"); provided, however, that permit sales no Grace Period shall exceed 15 consecutive days and during any 365 day period such Grace Periods shall not exceed an aggregate of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions30 days.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. 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 file 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, 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 (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 its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filingfiling (by the ninetieth (90th) day following the issuance of the relevant Preferred Stock for the registration of Registrable Securities pursuant to Section 2(a), and keep the Registration 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 Rule 144(k) promulgated under the 1933 Act (or successor thereto), ) or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares Stock is outstanding (the "Registration Period"), which Registration 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement(s) and the prospectus(es) used in connection with the Registration Statement(s), which prospectus(es) are to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep the Registration 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 the Registration 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 seller or sellers thereof as set forth in the Registration Statement(s). In the event the number of shares available under a Registration Statement filed pursuant to this Agreement is insufficient to cover all of the Registrable Securities, the Company shall amend 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 fifteen (15) days after the necessity therefor arises (based on the market price of the Common Stock and other relevant factors on which the Company reasonably elects to rely). The Company shall use its best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. 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. The Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel without charge (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, SEC at least one copy of the Registration Statement and any amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus(es) included in such Registration Statement(s) (including each preliminary prospectus ) and, with regards to the Registration Statement, any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and prospectus and each amendment any correspondence from the SEC or supplement theretothe staff of the SEC to the Company or its representatives, and (ii) such number upon the effectiveness of any Registration Statement, ten (10) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents, including any preliminary prospectus, as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (b) subject itself to general taxation in any such jurisdiction, or (c) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of any of the Company and Registrable Securities for sale under the securities or "blue sky" laws of any jurisdiction in the United States or its stockholdersreceipt of actual notice of the initiation or threatening of any proceeding for such purpose.
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, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor (or such other number of copies as such Investor may reasonably request.
g. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information also promptly notify each Investor in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company unless writing (i) disclosure of such information is necessary to comply with federal when a prospectus or state securities laws, (ii) the disclosure of such information is necessary to avoid any prospectus supplement 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, nonpost-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information effective amendment has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shallfiled, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to be listed each Investor by facsimile on each national securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing day of such Registrable Securities is then permitted under the rules of such exchange, or (ii) secure designation effectiveness and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.by
Appears in 1 contract
RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file 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 method of disposition thereof and, with respect thereto, the Company shall have the following obligations:
a. The Company shall use its best efforts Best Efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible within one hundred eighty (180) calendar days after the Filing Deadline and shall keep such filing, and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Securities Act (or successor thereto), or (ii) until the date on which (A) the Investors Holder shall have sold all the Registrable Securities or the shares included therein otherwise cease to be Registrable Securities, and (B) none of the Preferred Shares is outstanding Holder has no right to convert the securities it owns into Common Stock under the Subscription Agreement or Debenture, respectively (the "“Registration Period"”), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof Holder as set forth in such Registration Statement. In the Registration Statement(s).
c. The Company shall furnish to each Investor whose Registrable Securities are included in event the Registration Statement(s) and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy number of the shares of Common Stock available under a Registration Statement and filed pursuant to this Agreement is at any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and time insufficient to cover all amendments and supplements thereto and such other documents as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by Securities, the Company shall amend such Investor.
d. 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 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 Shares (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions as defined in the United States as Debenture) if at any time the Investors who 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 forty percent or more a shareholder’s meeting within thirty (30) calendar days for the sole purpose of authorizing additional shares of Common Stock to facilitate the Registrable Securities being offered reasonably request (but in no conversions. In such an event in more than five states of the United 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 (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 recommend to (a) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors all shareholders and management of the Company determines to be contrary to vote their shares in favor of increasing the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such authorized number of copies shares of such supplement or amendment Common Stock in sufficient number to each Investor as such Investor may reasonably request.
g. The Company shall use its best efforts to prevent fully cover the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (i) if required by an underwriter, a letter, dated such date, from the CompanyHolder'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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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 agreementconversion rights. The Company shall not be required represents and warrants that under no circumstances will it deny or prevent Holder’s right to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to convert the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 of such exchange, or (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market for such Registrable Securities and, without limiting the generality terms of the foregoingSubscription Agreement, this Agreement or any of the other Transaction Documents. The Holder retains the right to arrange for at least two market makers to register with request additional shares upon the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities.
m. The Company shall cooperate with determination the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, company may not be able to facilitate conversions in the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionsfuture.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Debenture Registration Rights Agreement (Brazil Interactive Media, Inc.)
RELATED OBLIGATIONS. a. At such time as the Company is obligated to file a Registration Statement with the Commission pursuant to Section 10.1 hereof, 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, pursuant thereto, the Company shall have the following obligations:
(a) The Company shall use its best efforts submit to cause the Commission, within two Business Days after the Company learns that no review of a particular Registration Statement will be made by the staff of the Commission 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(s) relating Statement to Registrable Securities to become effective as soon as possible a time and date not later than two Business Days after the submission of such filing, and request. The Company shall keep the each Registration Statement(s) Statement effective pursuant to Rule 415 at all times with respect to each Purchaser’s Registrable Securities until the earlier of (i) the date as of which the Investors may sell all expiration 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 Investors Reporting Period. The Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "ensure that each Registration Period"), which Registration Statement(s) 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 thereintherein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading.
b. (b) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) Statement effective at all times during the Registration Reporting 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement.
c. The (c) Upon request of a Purchaser, the Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel such Purchaser without charge, (i) promptly after the same Registration Statement including such Purchaser’s Registrable Securities is prepared and publicly distributed, filed with the SECCommission, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, and if requested by the Purchaser, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number upon the effectiveness of any Registration Statement, 10 copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as the Purchaser may reasonably request) and (iii) such Investor other documents, including copies of any preliminary or final prospectus, as the Purchaser may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such InvestorSecurities.
d. (d) The Company shall use reasonable efforts to (i) register and qualify notify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions Purchasers in the United States as the Investors who hold forty percent or more writing of the Registrable Securities being offered reasonably request (but in no event in more than five states happening of the United States)any event, (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and upon request deliver such number of 10 copies of such supplement or amendment to each Investor the Purchasers (or such other number of copies as such Investor the Purchasers may reasonably request). Unless such information is publicly available, the Company shall also promptly notify the Purchasers in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Purchasers by facsimile or email on the same day of such effectiveness), (ii) of any request by the Commission for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (e) The Company shall use its best commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor the Purchaser who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit (f) If a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, Purchaser is required under applicable securities law to review and comment upon be described in the Registration Statement(s) and all amendments and supplements thereto a Statement as an underwriter, at the reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldPurchaser, the Company shall furnishfurnish to the Purchaser, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as the Purchaser may reasonably request, (i) if required by an underwriter, a letter, dated such date, from the Company's ’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 underwritersPurchaser, 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 InvestorsPurchaser.
j. The (g) If a Purchaser is required under applicable securities law to be described in the Registration Statement as an underwriter, upon the written request of the Purchaser in connection with the Purchaser’s due diligence requirements, if any, the Company shall make available for inspection by (i) any Investor, the Purchaser and its legal counsel and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Purchaser (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 to enable each Inspector to exercise its solely for the purpose of establishing a due diligence responsibilitydefense under underwriter liability under the Securities Act, and cause the Company's ’s officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to an Investorthe Purchaser) or use of any 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 StatementStatement or is otherwise required under the Securities 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 Agreement or any other agreement. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). Each Investor Purchaser 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 forpreventing disclosure of, the Records deemed confidential. Nothing herein (or in any other confidentiality agreement between the Company and the Purchaser) shall be deemed to limit the Purchaser’s ability to sell Registrable Securities in a manner which is otherwise consistent with Applicable Laws.
k. (h) The Company shall hold in confidence and not make any disclosure of information concerning an Investor the Purchasers provided to the Company 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, 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 an Investor the Purchasers is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor the Purchasers and allow such Investorthe Purchasers, at the Investor's each Purchaser’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order forpreventing disclosure of, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered Purchasers and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Purchasers may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Purchasers may request. Not later than .
(j) If requested by a Purchaser, the date on which Company shall, as soon as practicable, (i) incorporate in a prospectus supplement or post-effective amendment such information as the Purchaser reasonably 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 all required filings of such prospectus supplement or post-effective amendment 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 registering if reasonably requested by the resale Purchaser.
(k) The Company shall use commercially reasonable efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(l) The Company shall otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission in connection with any registration hereunder.
(m) Within two Business Days after a Registration Statement that covers Registrable Securities is declared effectiveeffective by the Commission, the Company shall deliver to the transfer agent for such Registrable Securities (with copies to the Purchasers) confirmation that such Registration Statement has been declared effective by the Commission.
(n) Notwithstanding anything to the contrary herein, at any time after the Effectiveness 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 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 Purchasers 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 Purchasers) and the date on which the Grace Period will begin, and (ii) notify the Purchasers in writing of the date on which the Grace Period ends; and, provided further, that the Grace Periods shall not exceed an aggregate of 30 Trading Days during any 365-day period and the first day of any Grace Period must be at least 15 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 Purchasers receive the notice referred to in clause (i) and shall end on and include the later of the date the Purchasers receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 10.4(e) 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 10.4(d) 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 instructions, accompanied by to deliver unlegended shares of Common Stock to a transferee of any reasonably required opinion Purchaser in accordance with the terms of counsel, that permit sales of unlegended securities this Agreement in a timely fashion that complies connection with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors any sale of Registrable Securities pursuant with respect to which a Purchaser has entered into a contract for sale, and delivered a copy of the prospectus included as part of the applicable Registration StatementStatement (unless an exemption from such prospectus delivery requirement exists), prior to the Purchaser’s receipt of the notice of a Grace Period and for which the Purchaser has not yet settled.
(o) Neither the Company nor any Subsidiary or affiliate thereof shall identify any Purchaser as an underwriter in any public disclosure or filing with the Commission or any applicable Trading Market without the prior written consent of such Purchaser, and any Purchaser being deemed an underwriter by the Commission shall not relieve the Company of any obligations it has under this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Arrowhead Pharmaceuticals, Inc.)
RELATED OBLIGATIONS. a. The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of either (i) the date as of which the Investors may sell all of until the Registrable Securities without restriction are eligible to be sold pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto)Act, or (ii) the date on which (A) the Investors Investor shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "Registration Period"), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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 "1934 Act"), the Company shall have incorporated such report by reference into the Registration Statement(s)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 the Registration Statement.
c. The Company shall furnish to each the Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement as declared effective by the SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Investor of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. e. As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each the Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify the Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each the Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. g. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldInvestor, the Company shall furnishfurnish to the Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as the 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 InvestorsInvestor.
j. h. The Company shall make available for inspection by (i) any Investor, the Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investor (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and the Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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 agreementagreement of which the Inspector and the Investor has knowledge. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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. i. The Company shall hold in confidence and not make any disclosure of information concerning an the Investor provided to the Company 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 an the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such the Investor and allow such the Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. j. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. k. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, Investor to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Investor may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Investor may request. Not .
l. The Company shall use 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 consummate the disposition of such Registrable Securities.
m. The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 1933 Act) covering a twelve-month period beginning not later than the xxxxx xay of the Company's fiscal quarter next following the effective date on which of the Registration Statement.
n. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
o. Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investor) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. p. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors Investor of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Syndication Net Com Inc)
RELATED OBLIGATIONS. The Company will use its best efforts to effect the registration of the Registrable Securities contemplated by Section 2 in accordance with the intended method of disposition thereof and, 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 (on or prior to the Scheduled Filing Date) for the registration of Registrable Securities pursuant to Section 2 and use its best efforts to cause such Registration Statement(s) Statements relating to the Registrable Securities to become effective as soon as possible after such filing, . The Company shall not file any other Registration Statement with respect to any of its securities between the date hereof and 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(s) Statement required to be filed hereunder effective pursuant to Rule 415 at all times until for two years from the earlier of (i) the effective 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 Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which . The Registration Statement(s) 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 submit to the SEC, within five 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 the Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than 48 hours after the submission of such request.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement that 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-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 file such amendments or supplements with the SEC on the same day or as soon as practicably thereafter on which the Exchange Act report is filed that created the requirement for the Company to amend or supplement the Registration Statement(s)Statement.
c. The Company shall furnish to each Investor Holder whose Registrable Securities are included in any Registration Statement, without charge, upon the effectiveness of any Registration Statement(s) and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the CompanyStatement, one copy of the prospectus included in such Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto as such Holder may reasonably request and such other documents documents, including copies of any preliminary or final prospectus, as such Investor Holder may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such InvestorHolder.
d. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Holder reasonably request (but in no event in more than five states of the United States)requests, (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Holder who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threatening of any proceeding 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 offeringpurpose.
f. e. As promptly as practicable after becoming aware of such event, the Company shall notify each Investor Holder in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of copies one copy of such supplement or amendment to each Investor Holder (or such other number of copies as such Investor Holder may reasonably request). The Company shall also promptly notify each Holder in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Holder by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor Holder who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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. g. The Company shall hold in confidence and not make any disclosure of information concerning an Investor a Holder provided to the Company unless (i) disclosure of such information is necessary to comply with federal 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 an Investor Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor Holder and allow such InvestorHolder, at the InvestorHolder's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. h. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 or, if not, (ii) secure the designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market for if the Company then satisfies the applicable eligibility criteria of the Nasdaq Stock Market. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(h).
i. The Company shall provide a transfer agent and registrar of all such Registrable Securities and, without limiting not later than the generality effective date of such Registration Statement.
j. The Company shall use its best efforts to cause the foregoing, Registrable Securities covered by the applicable Registration Statement to arrange for at least two market makers be registered with or approved by such other governmental agencies or authorities as may be necessary to register with consummate the National Association disposition of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities.
m. k. The Company shall cooperate otherwise use its best efforts to comply with all applicable rules and regulations of the Investors who hold Registrable Securities being offered and, to the extent applicable, SEC in connection with any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates registration hereunder.
l. Within three (not bearing any restrictive legend3) representing the Registrable Securities to be offered pursuant to business days after a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of that covers applicable Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver to its the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Holders whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionsthe SEC.
n. m. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors Holders of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. a. (a) The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of on which the Investors may Investor shall have sold or is entitled to sell all of the Registrable Securities without restriction pursuant to the exemption from registration afforded by Rule 144(k) promulgated under the 1933 Act (or successor thereto)Securities Act, or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "“Registration Period"”), which Registration Statement(s) 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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’s 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 incorporate such report by reference into the Registration Statement(s)Statement, if applicable, or shall file such amendments or supplements with the SEC within three (3) business days following the date the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its articles of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (collectively, the "Inspectors"“Inspector”) 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 to enable each Inspector to exercise its due diligence responsibilitythe Inspector, and cause the Company's ’s officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each the Inspector shall agree, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are Inspector is so notified, unless (aA) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration StatementStatement or is otherwise required under the Securities Act, (bB) 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 (cC) 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (h) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's ’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (i) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (j) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(k) The Company shall use 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 consummate the offering by the Investor of such Registrable Securities.
(l) The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve (12) month period beginning not later than the first day of the Company’s fiscal quarter next following the effective date on which of the Registration Statement.
(m) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(n) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (o) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. a. The (a) Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of on 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 Investors Investor shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "covered by such Registration Period")Statement, which Registration Statement(s) 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; or (ii) all Registrable Securities can be sold pursuant to Rule 144(k) (the “Registration Period”).
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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’s 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 incorporate such report by reference into the Registration Statement(s)Statement, if applicable, or shall file such amendments or supplements with the SEC within two days of the date on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its articles of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's ’s officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement or is otherwise required under the Securities 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (h) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's ’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (i) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (j) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(k) The Company shall use 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 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 one hundred five (105) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve (12) month period beginning not later than the first day of the Company’s fiscal quarter next following the effective date on which of the Registration Statement.
(m) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(n) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (o) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Investor Registration Rights Agreement (Ignis Petroleum Group, Inc.)
RELATED OBLIGATIONS. a. The With respect to the Registration Statement and whenever any Registrable Securities are to be registered pursuant to Sections 2(a) and (c), including on any New Registration Statement, the Company shall use its reasonable best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep effect the Registration 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 registration of the Registrable Securities without restriction in accordance with the intended method of disposition thereof and, pursuant to Rule 144(k) promulgated under thereto, the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration 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.following obligations:
b. a. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the any Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with the such Registration Statement(s) Statement, as may be necessary to keep the Registration Statement(s) Statement or any New Registration Statement effective at all times during the Registration Period, subject to Permitted Delays and Section 3(e) 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 the Registration Statement(s) Statement or any New 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 seller or sellers thereof as set forth in such Registration Statement. Should the Company file a post-effective amendment to the Registration Statement(sStatement or a New Registration Statement, the Company will use its reasonable best efforts to have such filing declared effective by the SEC within thirty (30) consecutive Business Days following the date of filing, which such period shall be extended for an additional thirty (30) Business Days if the Company receives a comment letter from the SEC in connection therewith. If (i) there is material non-public information regarding the Company which the Company’s Board of Directors reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Company’s Board of Directors reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under a Registration Statement or a New Registration Statement, then the Company may postpone or suspend filing or effectiveness of such Registration Statement or New Registration Statement or use of the prospectus under the Registration Statement or New Registration Statement for a period not to exceed sixty (60) consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(a) for more than ninety (90) days in the aggregate during any twelve (12) month period (each, a “Permitted Delay”).
c. b. The Company shall submit to the Buyer for review and comment any disclosure in the Registration Statement, any New Registration Statement and all amendments and supplements thereto (other than prospectus supplements that consist only of a copy of a filed Form 20-F or Form 6-K or any amendment as a result of the Company’s filing of a document that is incorporated by reference into the Registration Statement or New Registration Statement) containing information provided by the Buyer for inclusion in such document and any descriptions or disclosure regarding the Buyer, the Purchase Agreement, including the transaction contemplated thereby, or this Agreement at least two (2) Business Days prior to their filing with the SEC, and not file any document in a form to which Buyer reasonably and timely objects. Upon request of the Buyer, the Company shall provide to the Buyer all disclosure in the Registration Statement or any New Registration Statement and all amendments and supplements thereto (other than prospectus supplements that consist only of a copy of a filed 20-F or Form 6-K or any amendment as a result of the Company’s filing of a document that is incorporated by reference into the Registration Statement or New Registration Statement) at least two (2) Business Days prior to their filing with the SEC, and not file any document in a form to which Buyer reasonably and timely objects. The Buyer shall use its reasonable best efforts to comment upon the Registration Statement or any New Registration Statement and any amendments or supplements thereto within two (2) Business Days from the date the Buyer receives the final version thereof. The Company shall furnish to each Investor whose Registrable Securities are included in the Buyer, without charge, any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to the Registration Statement(s) and its legal counsel Statement or any New Registration Statement.
c. Upon request of the Buyer, the Company shall furnish to the Buyer, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) such number of copies upon the effectiveness of a prospectusRegistration Statement, including a preliminary prospectus, copy of the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as the Buyer may reasonably request) and (iii) such Investor other documents, including copies of any preliminary or final prospectus, as the Buyer may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investorthe Buyer.
d. The Company shall use reasonable best efforts to (i) register and qualify qualify, unless an exemption from registration and qualification is available, the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Buyer reasonably request (but in no event in more than five states of the United States)requests, (ii) subject to Permitted Delays, 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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Buyer who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. As e. Subject to Permitted Delays, as promptly as reasonably practicable after becoming aware of such eventevent or facts, the Company shall notify each Investor of the happening of any event, of which Buyer in writing if the Company has knowledge, as a result of which determined that the prospectus included in a any 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, and use as promptly as reasonably practical (taking into account the Company’s good faith assessment of any adverse consequences to the Company and its best efforts promptly to shareholders of premature disclosure of such event or facts) prepare a prospectus supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and and, upon the Buyer’s request, deliver such number of copies a copy of such prospectus supplement or amendment to each Investor the Buyer. In providing this notice to the Buyer, the Company shall not include any other information about the facts underlying the Company’s determination and shall not in any way communicate any material nonpublic information about the Company or the Common Shares to the Buyer. The Company shall also promptly notify the Buyer in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Buyer by facsimile or e-mail on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to any Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate. In no event shall the delivery of a notice under this Section 3(e), or the resulting unavailability of a Registration Statement, without regard to its duration, for disposition of securities by Buyer be considered a breach by the Company of its obligations under this Agreement. The preceding sentence in this Section 3(e) does not limit whether an event of default has occurred as such Investor may reasonably requestset forth in Section 9(a) of the Purchase Agreement.
g. f. The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a any Registration Statement, or the suspension of the qualification of any 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 practical time and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) Buyer of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by g. To the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldextent necessary, the Company shall furnish, promptly secure the listing of all of the Securities (subject to official notice of issuance) on the date that Registrable Securities are delivered to an underwriterU.S. Exchange and shall maintain such listing, if any, for sale in connection with the Registration Statement (i) if required by an underwriter, a letter, dated such date, from the Company's independent certified public accountants in form and substance so long 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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters (collectively, the "Inspectors") all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "Records"), as Common Shares shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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 agreementlisted. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's reasonable best efforts to satisfy maintain the preceding clause (i) or (ii), Common Shares’ listing on the U.S. Exchange in accordance with the requirements of this Agreement. Neither the Company is unsuccessful nor any of its Subsidiaries shall take any action that would be reasonably expected to result in satisfying the preceding clause (i) delisting or (ii), to secure suspension of the inclusion for quotation Common Shares on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.U.S.
Appears in 1 contract
Samples: Registration Rights Agreement (Aptose Biosciences Inc.)
RELATED OBLIGATIONS. 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 file 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, 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 on or prior to May 14, 2000, for the registration of Registrable Securities pursuant to Section 2(a)) and use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filingfiling (by the one hundred and twentieth (120th) day following the issuance of the relevant Preferred Stock for the registration of Registrable Securities pursuant to Section 2(a), and keep the Registration 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 Rule 144(k) promulgated under the 1933 Act (or successor thereto), ) or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares Stock is outstanding the period ending on such earlier date being referred to herein as (the "Registration PeriodREGISTRATION PERIOD"), which Registration 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement(s) and the prospectus(es) used in connection with the Registration Statement(s), which prospectus(es) are to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep the Registration 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 the Registration 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 seller or sellers thereof as set forth in the Registration Statement(s). In the event the number of shares available under a Registration Statement filed pursuant to this Agreement is insufficient to cover all of the Registrable Securities, the Company shall amend 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 fifteen (15) days after the necessity therefor arises (based on the market price of the Common Stock and other relevant factors on which the Company reasonably elects to rely). The Company shall use its best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. 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) 1.0. 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. The Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel without charge (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, SEC at least one copy of the Registration Statement and any amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, the prospectus(es) included in such Registration Statement(s) (including each preliminary prospectus ) and, with regards to the Registration Statement, any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and prospectus and each amendment any correspondence from the SEC or supplement theretothe staff of the SEC to the Company or its representatives, and (ii) such number upon the effectiveness of any Registration Statement, ten (10) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents, including any preliminary prospectus, as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (b) subject itself to general taxation in any such jurisdiction, or (c) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of any of the Company and Registrable Securities for sale under the securities or "blue sky" laws of any jurisdiction in the United States or its stockholdersreceipt of actual notice of the initiation or threatening of any proceeding for such purpose.
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, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor (or such other number of copies as such Investor may reasonably request). The Company shall also promptly notify each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor by facsimile on the same day of such effectiveness and by overnight mail) (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor who holds Registrable Securities being sold (orand, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit each Investor a single firm of counsel, counsel or such other counsel as thereafter designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time at least five (5) days prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement(s) or any amendment or supplement thereto without the prior approval of such counsel, which consent shall not be unreasonably withheld.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters (collectively, the "InspectorsINSPECTORS") all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "RecordsRECORDS"), as shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; diligence provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement 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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Homecom Communications Inc)
RELATED OBLIGATIONS. a. The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as Investor has disposed 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 Investors shall have sold all the Registrable Securities and Shares or (Bb) none of all Registrable Shares are may be freely resold by the Preferred Shares is outstanding Investor without any limitations under Rule 144 (the "“Registration Period"”), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 Shares of the Company covered by the such Registration Statement(s) Statement until such time as all of such Registrable Securities Shares shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of 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’s 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 “Exchange Act”), the Company shall have incorporated such report by reference into the Registration Statement(s)Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
c. The Company shall furnish to each the Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement as declared effective by the SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities Shares owned by such Investor.
d. The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities Shares covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities Shares for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Investor of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of any of the Company and Registrable Shares for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its stockholdersreceipt of actual notice of the initiation or threat of any proceeding for such purpose.
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 eventevent or development, the Company shall notify each the Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify the Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Shares for sale in any jurisdiction within the United States of America 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 each the Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. g. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldInvestor, the Company shall furnishfurnish to each Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as the Investor may reasonably request (i) if required by an underwriter, a letter, dated such date, from the Company's ’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 advance blanket legal opinion, dated as of such date, of counsel representing the Company for purposes of such Registration Statement, relating to (1) the issuance of the Registrable Shares without legend, and (2) the subsequent sale of the Registrable Shares under the Registration Statement (so long as it is then effective) for cash at current market prices on the Principal Market through a registered broker-dealer. Each Investor acknowledges that until sold in formthe manner described above, scope the Registrable Shares shall continue to represent “Restricted Stock” within the meaning of the federal securities laws, and substance that any other transaction pursuant to which the Investor desires to remove such classification, including private sales of the Registrable Shares, will require a separate legal opinion as of each such transaction establishing conformity with the terms of the form of registration statement to be relied upon (which is customarily given anticipated to be form S-1), notwithstanding that the Registrable Shares do not bear a restrictive legend. Each Investor further acknowledges that should it place the Registrable Shares in an underwritten public offeringstreet name in the account of a broker-dealer, addressed that such broker-dealer will be required to abide by the underwriters and terms of the Investorsblanket advance legal opinion.
j. h. The Company shall make available for inspection by (i) any Investor, the Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investor (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 to enable each Inspector them to exercise its their due diligence responsibility, and cause the Company's ’s officers, directors and employees to supply all information which any Inspector may reasonably request for purposes in connection with the Registration Statement. The Investor agrees that Records obtained by it as a result of such due diligence; provided, however, that each Inspector inspections which is conspicuously marked by the Company as "Confidential" (subject to the Company’s obligations with respect to material non-public information set forth in Section 8.1(a) herein) shall hold be deemed confidential and held in strict confidence and shall not make any disclosure (except to an by the Investor) or use of any 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 StatementStatement or is otherwise required under the Securities 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 agreementagreement of which the Inspector and the Investor has knowledge. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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. i. The Company shall hold in confidence and not make any disclosure of information concerning an the Investor provided to the Company 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 an the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such the Investor and allow such the Investor, at the Investor's ’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. j. The Company shall use its best efforts either to (i) cause all the Registrable Securities Shares covered by a Registration Statement (i) to be listed on each national securities exchange 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 Shares is then permitted under the rules of such exchange, exchange or (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register Primary Market. The Company shall pay all fees and expenses in connection with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securitiessatisfying its obligation under this Section 3(j).
m. k. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, Investor to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legendlegend subject to the terms of the blanket advance opinion letter referenced in Section 3(g)) representing the Registrable Securities Shares to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Investor may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Investor may request. Not .
l. The Company shall use its best efforts to cause the Registrable Shares covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Shares.
m. The Company shall make generally available to its security holders as soon as practical, but not later than one hundred(100) days after the close of the period covered thereby, an earnings statement (in 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 on which of the Registration Statement.
n. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
o. Within five (1) business days after a Registration Statement registering which covers Registrable Shares is ordered effective by the resale of Registrable Securities is declared effectiveSEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Shares (with copies to the Investor) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. p. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors Investor of Registrable Securities Shares pursuant to a Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (China Shoe Holdings, Inc.)
RELATED OBLIGATIONS. a. At such time as the Company is obligated to file a Registration Statement with the Commission pursuant to Section 13.1 hereof, 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, pursuant thereto, the Company shall have the following obligations (to the extent applicable):
(a) The Company shall use its best efforts submit to cause the Commission, within two Business Days after the Company learns that no review of a particular Registration Statement will be made by the staff of the Commission 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(s) relating Statement to Registrable Securities to become effective as soon as possible a time and date not later than two Business Days after the submission of such filing, and request. The Company shall keep the each Registration Statement(s) Statement effective pursuant to Rule 415 at all times with respect to each Purchaser’s Registrable Securities until the earlier of (i) the date as of which the Investors may sell all expiration 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 Investors Reporting Period. The Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "ensure that each Registration Period"), which Registration Statement(s) 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 thereintherein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading.
b. (b) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) Statement effective at all times during the Registration Reporting 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement.
c. The (c) Upon request of a Purchaser, the Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel such Purchaser without charge, (i) promptly after the same Registration Statement including such Purchaser’s Registrable Securities is prepared and publicly distributed, filed with the SECCommission, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, and if requested by the Purchaser, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number upon the effectiveness of any Registration Statement, 10 copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as the Purchaser may reasonably request) and (iii) such Investor other documents, including copies of any preliminary or final prospectus, as the Purchaser may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such InvestorSecurities.
d. (d) The Company shall use reasonable efforts to (i) register and qualify notify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions Purchasers in the United States as the Investors who hold forty percent or more writing of the Registrable Securities being offered reasonably request (but in no event in more than five states happening of the United States)any event, (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and upon request deliver such number of 10 copies of such supplement or amendment to each Investor the Purchasers (or such other number of copies as such Investor the Purchasers may reasonably request). Unless such information is publicly available, the Company shall also promptly notify the Purchasers in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Purchasers by email on the same day of such effectiveness), (ii) of any request by the Commission for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (e) The Company shall use its best commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor the Purchaser who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit (f) If a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, Purchaser is required under applicable securities law to review and comment upon be described in the Registration Statement(s) and all amendments and supplements thereto a Statement as an underwriter, at the reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldPurchaser, the Company shall furnishfurnish to the Purchaser, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as the Purchaser may reasonably request, (i) if required by an underwriter, a letter, dated such date, from the Company's ’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 underwritersPurchaser, 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 InvestorsPurchaser.
j. The (g) If a Purchaser is required under applicable securities law to be described in the Registration Statement as an underwriter, upon the written request of the Purchaser in connection with the Purchaser’s due diligence requirements, if any, the Company shall make available for inspection by (i) any Investor, the Purchaser and its legal counsel and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Purchaser (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 to enable each Inspector to exercise its solely for the purpose of establishing a due diligence responsibilitydefense under underwriter liability under the Securities Act, and cause the Company's ’s officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to an Investorthe Purchaser) or use of any 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 StatementStatement or is otherwise required under the Securities 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 agreementAgreement. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). Each Investor Purchaser 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 forpreventing disclosure of, the Records deemed confidential. Nothing herein (or in any other confidentiality agreement between the Company and the Purchaser) shall be deemed to limit the Purchaser’s ability to sell Registrable Securities in a manner which is otherwise consistent with Applicable Laws.
k. (h) The Company shall hold in confidence and not make any disclosure of information concerning an Investor the Purchasers provided to the Company 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, jurisdiction or (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreementAgreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor the Purchasers is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor the Purchasers and allow such Investorthe Purchasers, at the Investor's each Purchaser’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order forpreventing disclosure of, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered Purchasers and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Purchasers may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Purchasers may request. Not later than .
(j) If requested by a Purchaser, the date on which Company shall, as soon as practicable, (i) incorporate in a prospectus supplement or post-effective amendment such information as the Purchaser reasonably 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 all required filings of such prospectus supplement or post-effective amendment 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 registering if reasonably requested by the resale Purchaser.
(k) The Company shall use commercially reasonable efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(l) The Company shall otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission in connection with any registration hereunder.
(m) Within two Business Days after a Registration Statement that covers Registrable Securities is declared effectiveeffective by the Commission, the Company shall deliver to the transfer agent for such Registrable Securities (with copies to the Purchasers) confirmation that such Registration Statement has been declared effective by the Commission.
(n) Notwithstanding anything to the contrary herein, at any time after the Effectiveness 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 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 Purchasers 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 Purchasers) and the date on which the Grace Period will begin, and (ii) notify the Purchasers in writing of the date on which the Grace Period ends; and, provided further, that the Grace Periods shall not exceed an aggregate of 30 Trading Days during any 365-day period and the first day of any Grace Period must be at least 15 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 Purchasers receive the notice referred to in clause (i) and shall end on and include the later of the date the Purchasers receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 13.3(e) 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 13.3(d) 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 instructions, accompanied by to deliver unlegended shares of Common Stock to a transferee of any reasonably required opinion Purchaser in accordance with the terms of counsel, that permit sales of unlegended securities this Agreement in a timely fashion that complies connection with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors any sale of Registrable Securities pursuant with respect to which a Purchaser has entered into a contract for sale, and delivered a copy of the prospectus included as part of the applicable Registration StatementStatement (unless an exemption from such prospectus delivery requirement exists), prior to the Purchaser’s receipt of the notice of a Grace Period and for which the Purchaser has not yet settled.
(o) Neither the Company nor any Subsidiary or affiliate thereof shall identify any Purchaser as an underwriter in any public disclosure or filing with the Commission or any applicable Trading Market without the prior written consent of such Purchaser, and any Purchaser being deemed an underwriter by the Commission shall not relieve the Company of any obligations it has under this Agreement.
Appears in 1 contract
Samples: Note Purchase Agreement (Heron Therapeutics, Inc. /De/)
RELATED OBLIGATIONS. a. At such time as the Company is obligated to file a Registration Statement with the Commission pursuant to Section 10.1 hereof, 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, pursuant thereto, the Company shall have the following obligations:
(a) The Company shall use its best efforts submit to cause the Commission, within two Business Days after the Company learns that no review of a particular Registration Statement will be made by the staff of the Commission 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(s) relating Statement to Registrable Securities to become effective as soon as possible a time and date not later than two Business Days after the submission of such filing, and request. The Company shall keep the each Registration Statement(s) Statement effective pursuant to Rule 415 at all times with respect to the Purchaser’s Registrable Securities until the earlier of (i) the date as of which the Investors may sell all expiration 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 Investors Reporting Period. The Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "ensure that each Registration Period"), which Registration Statement(s) 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 thereintherein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading.
b. (b) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) Statement effective at all times during the Registration Reporting 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement.
c. The (c) Upon request of a Purchaser, the Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel Purchaser without charge, (i) promptly after the same Registration Statement including the Purchaser’s Registrable Securities is prepared and publicly distributed, filed with the SECCommission, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, and if requested by the Purchaser, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number upon the effectiveness of any Registration Statement, 10 copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as the Purchaser may reasonably request) and (iii) such Investor other documents, including copies of any preliminary or final prospectus, as the Purchaser may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such InvestorSecurities.
d. (d) The Company shall use reasonable efforts to (i) register and qualify notify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions Purchaser in the United States as the Investors who hold forty percent or more writing of the Registrable Securities being offered reasonably request (but in no event in more than five states happening of the United States)any event, (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a 18 supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and upon request deliver such number of 10 copies of such supplement or amendment to each Investor the Purchaser (or such other number of copies as such Investor the Purchaser may reasonably request). Unless such information is publicly available, the Company shall also promptly notify the Purchaser in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Purchaser by facsimile or email on the same day of such effectiveness), (ii) of any request by the Commission for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (e) The Company shall use its best commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor the Purchaser who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit (f) If a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, Purchaser is required under applicable securities law to review and comment upon be described in the Registration Statement(s) and all amendments and supplements thereto a Statement as an underwriter, at the reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldPurchaser, the Company shall furnishfurnish to the Purchaser, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as the Purchaser may reasonably request, (i) if required by an underwriter, a letter, dated such date, from the Company's ’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 underwritersPurchaser, 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 InvestorsPurchaser.
j. The (g) If a Purchaser is required under applicable securities law to be described in the Registration Statement as an underwriter, upon the written request of the Purchaser in connection with the Purchaser’s due diligence requirements, if any, the Company shall make available for inspection by (i) any Investor, the Purchaser and its legal counsel and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Purchaser (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 to enable each Inspector to exercise its solely for the purpose of establishing a due diligence responsibilitydefense under underwriter liability under the Securities Act, and cause the Company's ’s officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to an Investorthe Purchaser) or use of any 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 StatementStatement or is otherwise required under the Securities 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 Agreement or any other agreement. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). Each Investor Purchaser 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 forpreventing disclosure of, the Records deemed confidential. Nothing herein (or in any other confidentiality agreement between the Company and the Purchaser) shall be deemed to limit the Purchaser’s ability to sell Registrable Securities in a manner which is otherwise consistent with Applicable Laws.
k. (h) The Company shall hold in confidence and not make any disclosure of information concerning an Investor the Purchaser provided to the Company 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, 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 an Investor the Purchaser is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor the Purchaser and allow such Investorthe Purchaser, at the Investor's Purchaser’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order forpreventing disclosure of, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered Purchaser and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Purchaser may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Purchaser may request. Not later than .
(j) If requested by a Purchaser, the date on which Company shall, as soon as practicable, (i) incorporate in a prospectus supplement or post-effective amendment such information as the Purchaser reasonably 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 all required filings of such prospectus supplement or post-effective amendment 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 registering if reasonably requested by the resale Purchaser.
(k) The Company shall use commercially reasonable efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(l) The Company shall otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission in connection with any registration hereunder.
(m) Within two Business Days after a Registration Statement that covers Registrable Securities is declared effectiveeffective by the Commission, the Company shall deliver to the transfer agent for such Registrable Securities (with copies to the Purchaser) confirmation that such Registration Statement has been declared effective by the Commission.
(n) Notwithstanding anything to the contrary herein, at any time after the Effectiveness 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 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 Purchaser 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 Purchaser) and the date on which the Grace Period will begin, and (ii) notify the Purchaser in writing of the date on which the Grace Period ends; and, provided further, that the Grace Periods shall not exceed an aggregate of 30 Trading Days during any 365-day period and the first day of any Grace Period must be at least 15 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 Purchaser receive the notice referred to in clause (i) and shall end on and include the later of the date the Purchaser receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 10.4(e) 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 10.4(d) 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 instructions, accompanied by to deliver un-legended shares of Common Stock to a transferee of any reasonably required opinion Purchaser in accordance with the terms of counsel, that permit sales of unlegended securities this Agreement in a timely fashion that complies connection with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors any sale of Registrable Securities pursuant with respect to which a Purchaser has entered into a contract for sale, and delivered a copy of the prospectus included as part of the applicable Registration StatementStatement (unless an exemption from such prospectus delivery requirement exists), prior to the Purchaser’s receipt of the notice of a Grace Period and for which the Purchaser has not yet settled.
Appears in 1 contract
Samples: Securities Purchase Agreement (Rockwell Medical, Inc.)
RELATED OBLIGATIONS. a. (a) The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of either (i) the date as of which the Investors may sell all of the Registrable Securities without restriction are eligible to be sold pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto)Act, or (ii) the date on which (A) the Investors Investor shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "Registration Period"), which Registration Statement(s) 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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 incorporate such report by reference into the Registration Statement(s)Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use reasonable its best efforts when required by law to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its articles of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to 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 (h) Upon five (5) days prior written notice by the Investor, which notice shall not be given more than one (1) time per calendar quarter, the Company shall make available for inspection by (i) any Investor, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement or is otherwise required under the Securities 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (i) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (j) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (k) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(l) The Company shall use 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 consummate the disposition of such Registrable Securities.
(m) The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve (12) month period beginning not later than the first day of the Company's fiscal quarter next following the effective date on which of the Registration Statement.
(n) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(o) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (p) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Investor Registration Rights Agreement (StrikeForce Technologies Inc.)
RELATED OBLIGATIONS. a. (a) The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until through the earlier 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)have been sold, or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (Bbecome eligible for sale without restriction under Rule 144(k) none promulgated under the Securities Act of the Preferred Shares is outstanding 1933 (the "Registration PeriodREGISTRATION PERIOD"), which Registration Statement(s) 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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's 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 incorporate such report by reference into the Registration Statement(s)Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States in which the manual exemption is available plus up to ten (10) additional states as designated by the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United States)Investor, (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 (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 (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldany Investor, the Company shall furnishfurnish to such Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to 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 (h) Upon five (5) days prior written notice by the Investor, which notice shall not be given more than one (1) time per calendar quarter, the Company shall make available for inspection by (i) any Investor, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors at the Investors, and (iv) one firm of attorneys retained by all such underwriters ' expense (collectively, the "InspectorsINSPECTORS") all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "RecordsRECORDS"), as shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its due diligence responsibilityverify the contents of the Registration Statement and any amendments or supplements thereto, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement or is otherwise required under the Securities 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (i) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (j) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (k) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(l) The Company shall use 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 consummate the disposition of such Registrable Securities.
(m) The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an unaudited (except that the year-end statement shall be audited) earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve (12) month period beginning not later than the first day of the Company's fiscal quarter next following the effective date on which of the Registration Statement.
(n) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(o) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as EXHIBIT A.
n. (p) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Investor Registration Rights Agreement (U.S. Helicopter CORP)
RELATED OBLIGATIONS. a. The With respect to the Registration Statement and whenever any Registrable Securities are to be registered pursuant to Sections 2(a) and (c), including on the Shelf Registration Statement or on any New Registration Statement, the Company shall use its reasonable best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep effect the Registration 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 registration of the Registrable Securities without restriction in accordance with the intended method of disposition thereof and, pursuant to Rule 144(k) promulgated under thereto, the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration 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.following obligations:
b. a. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Shelf Registration Statement(s) Statement and the prospectus(es) any New Registration Statement and any Prospectus used in connection with the such Registration Statement(s) Statement, as may be necessary to keep the Shelf Registration Statement(s) Statement or any New Registration Statement effective at all times during the Registration Period, subject to Permitted Delays and Section 3(e) hereof 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 the Shelf Registration Statement(s) Statement or any New 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 seller or sellers thereof as set forth in such Registration Statement. Should the Company file a post-effective amendment to the Shelf Registration Statement or a New Registration Statement, the Company will use its reasonable best efforts to have such filing declared effective by the SEC within thirty (30) consecutive Business Days following the date of filing, which such period shall be extended for an additional thirty (30) Business Days if the Company receives a comment letter from the SEC in connection therewith. If (i) there is material non-public information regarding the Company which the Company’s Board of Directors reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Company’s Board of Directors reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement(sStatement, then the Company may postpone or suspend filing or effectiveness of such Registration Statement or use of the prospectus under the Registration Statement for a period not to exceed sixty (60) consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(a) for more than ninety (90) days in the aggregate during any twelve (12) month period (each, a “Permitted Delay”).
c. b. The Company shall submit to the Buyer for review and comment any disclosure in the Registration Statement, and all amendments and supplements thereto (other than prospectus supplements that consist only of a copy of a filed Form 20-F, Form 40-F, Form 10-K, Form 10-Q, Form 6-K, Form 8-K or any amendment as a result of the Company’s filing of a document that is incorporated by reference into the Registration Statement), containing information provided by the Buyer for inclusion in such document and any descriptions or disclosure regarding the Buyer, the Purchase Agreement, including the transaction contemplated thereby, or this Agreement at least two (2) Business Days prior to their filing with the SEC, and not file any document in a form to which Buyer reasonably and timely objects. Upon request of the Buyer, the Company shall provide to the Buyer all disclosure in the Registration Statement and all amendments and supplements thereto (other than prospectus supplements that consist only of a copy of a filed Form 20-F, Form 40-F, Form 10-K, Form 10-Q, Form 6-K, Form 8-K or any amendment as a result of the Company’s filing of a document that is incorporated by reference into a Registration Statement) at least two (2) Business Days prior to their filing with the SEC, and not file any document in a form to which Buyer reasonably and timely objects. The Buyer shall use its reasonable best efforts to comment upon the Registration Statement or any New Registration Statement and any amendments or supplements thereto within two (2) Business Days from the date the Buyer receives the final version thereof. The Company shall furnish to each Investor whose Registrable Securities are included in the Buyer, without charge, any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to any Registration Statement(s) and its legal counsel Statement.
c. Upon request of the Buyer, the Company shall furnish to the Buyer, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including all financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) upon the effectiveness of any amendment(s) to a Registration Statement, a copy of the prospectus included in such number of copies of a prospectus, including a preliminary prospectus, Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as the Buyer may reasonably request) and (iii) such Investor other documents, including copies of any preliminary or final prospectus, as the Buyer may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investorthe Buyer.
d. The Company shall use reasonable best efforts to (i) register and qualify qualify, unless an exemption from registration and qualification is available, the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Buyer reasonably request (but in no event in more than five states of the United States)requests, (ii) subject to Permitted Delays, 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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Buyer who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. As e. Subject to Permitted Delays, as promptly as reasonably practicable after becoming aware of such eventevent or facts, the Company shall notify each Investor of the happening of any event, of which Buyer in writing if the Company has knowledge, as a result of which determined that the prospectus Prospectus included in a any 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, and use as promptly as reasonably practical (taking into account the Company’s good faith assessment of any adverse consequences to the Company and its best efforts promptly to shareholders of premature disclosure of such event or facts) prepare a prospectus supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and and, upon the Buyer’s request, deliver such number of copies a copy of such prospectus supplement or amendment to each Investor the Buyer. In providing this notice to the Buyer, the Company shall not include any other information about the facts underlying the Company’s determination and shall not in any way communicate any material nonpublic information about the Company or the Common Shares to the Buyer. The Company shall also promptly notify the Buyer in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Buyer by facsimile or e-mail on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to any Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate. In no event shall the delivery of a notice under this Section 3(e), or the resulting unavailability of a Registration Statement, without regard to its duration, for disposition of securities by Buyer be considered a breach by the Company of its obligations under this Agreement. The preceding sentence in this Section 3(e) does not limit whether an event of default has occurred as such Investor may reasonably requestset forth in Section 9(a) of the Purchase Agreement.
g. f. The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a any Registration Statement, or the suspension of the qualification of any 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 practical time and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) Buyer of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by g. To the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldextent necessary, the Company shall furnish, promptly secure the listing of all of the Securities (subject to official notice of issuance) on the date that Registrable Securities are delivered to an underwriterU.S. Exchange and shall maintain such listing, if any, for sale in connection with the Registration Statement (i) if required by an underwriter, a letter, dated such date, from the Company's independent certified public accountants in form and substance so long 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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters (collectively, the "Inspectors") all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "Records"), as Common Shares shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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 agreementlisted. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's reasonable best efforts to satisfy maintain the preceding clause (i) or (ii), Common Shares’ listing on the U.S. Exchange in accordance with the requirements of this Agreement. Neither the Company is unsuccessful nor any of its Subsidiaries shall take any action that would be reasonably expected to result in satisfying the preceding clause (i) delisting or (ii), to secure suspension of the inclusion for quotation Common Shares on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.U.S.
Appears in 1 contract
Samples: Registration Rights Agreement (Aptose Biosciences Inc.)
RELATED OBLIGATIONS. a. (a) The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until until, except for Blackout Periods, the earlier of (i1) 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 Investors Investor shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "“Registration Period"”) or (2) the Registrable Securities are eligible for sale pursuant to Rule 144(k), which Registration Statement(s) 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.
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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’s 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 incorporate such report by reference into the Registration Statement(s)Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its articles of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. Notwithstanding any provision of this Agreement to the contrary, if the Company makes such a notification, the Company may suspend the use of any prospectus contained in any Registration Statement for periods not to exceed thirty (30) business days in any six (6) month period or an aggregate of sixty (60) business days in any 12 month period ("Blackout Period") in the event that the Company determines, after consultation with outside legal counsel, in the exercise of its reasonable discretion, that sales of Registrable Securities thereunder could constitute violations of the Securities Act due to the Registration Statement containing 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. In each case the Company shall use commercially reasonable efforts to remedy the deficiency in the Registration Statement within forty five (45) calendar days of the beginning of such Blackout Period. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's ’s officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement or is otherwise required under the Securities 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (h) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities lawslaws (including comments of the staff of the SEC to the Registration Statement), (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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's ’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (i) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. The (j) Subject to the obligation of the Investor to comply with securities laws, the Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than .
(k) The Company shall use its best efforts to cause the date on which any Registrable Securities covered by the applicable Registration Statement registering to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the resale disposition of such Registrable Securities.
(l) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(m) Within two (2) business days after a Registration Statement which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (n) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Investor Registration Rights Agreement (Barnabus Energy, Inc.)
RELATED OBLIGATIONS. a. At such time as the Company is obligated to file a Registration Statement with the Commission pursuant to Section 5.1 hereof, 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, pursuant thereto, the Company shall have the following obligations:
(a) The Company shall use its best efforts submit to cause the Commission, within one (1) Business Day after the Company learns that no review of a particular Registration Statement will be made by the Staff 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(sStatement to a time and date not later than two (2) relating to Registrable Securities to become effective as soon as possible Business Days after the submission of such filing, and request. The Company shall keep the each Registration Statement(s) Statement effective pursuant to Rule 415 at all times with respect to each Purchaser’s Registrable Securities until the earlier of (i) the date as of which the Investors may sell all expiration 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 Investors Reporting Period. The Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "ensure that each Registration Period"), which Registration Statement(s) 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 thereintherein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading.
b. (b) The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) Statement effective at all times during the Registration Reporting 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in the such Registration Statement(s)Statement.
c. The (c) Upon request of a Purchaser, the Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel such Purchaser without charge, (i) promptly after the same Registration Statement including such Purchaser’s Registrable Securities is prepared and publicly distributed, filed with the SECCommission, or received by the Company, at least one (1) copy of the such Registration Statement and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, and if requested by the Purchaser, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number upon the effectiveness of any Registration Statement, ten (10) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as the Purchaser may reasonably request) and (iii) such Investor other documents, including copies of any preliminary or final prospectus, as the Purchaser may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such InvestorSecurities.
d. (d) The Company shall use reasonable efforts to (i) register and qualify notify the Registrable Securities covered by the Registration Statement(s) under such other securities or "blue sky" laws of such jurisdictions Purchasers in the United States as the Investors who hold forty percent or more writing of the Registrable Securities being offered reasonably request (but in no event in more than five states happening of the United States)any event, (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and upon request deliver such number of ten (10) copies of such supplement or amendment to each Investor the Purchasers (or such other number of copies as such Investor the Purchasers may reasonably request). Unless such information is publicly available, the Company shall also promptly notify the Purchasers in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Purchasers by facsimile or email within one (1) Business Day of such effectiveness), (ii) of any request by the Commission for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (e) The Company shall use its best commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor the Purchaser who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit (f) If a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, Purchaser is required under applicable securities law to review and comment upon be described in the Registration Statement(s) and all amendments and supplements thereto a Statement as an underwriter, at the reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being soldPurchaser, the Company shall furnishfurnish to the Purchaser, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as the Purchaser may reasonably request, (i) if required by an underwriter, a letter, dated such date, from the Company's ’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 underwritersPurchaser, 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 InvestorsPurchaser.
j. The (g) If a Purchaser is required under applicable securities law to be described in the Registration Statement as an underwriter, upon the written request of the Purchaser in connection with the Purchaser’s due diligence requirements, if any, the Company shall make available for inspection by (i) any Investor, the Purchaser and its legal counsel and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Purchaser (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 to enable each Inspector to exercise its solely for the purpose of establishing a due diligence responsibilitydefense from underwriter liability under the Securities Act, and cause the Company's ’s officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to an Investorthe Purchaser) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (aA) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration StatementStatement or is otherwise required under the Securities Act, (bB) 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 (cC) the information in such Records has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). Each Investor Purchaser 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 forpreventing disclosure of, the Records deemed confidential. Nothing herein (or in any other confidentiality agreement between the Company and the Purchaser) shall be deemed to limit the Purchaser’s ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws.
k. (h) The Company shall hold in confidence and not make any disclosure of information concerning an Investor the Purchasers provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, including as provided in Section 4.4 of this Agreement, (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, 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 an Investor the Purchasers is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor the Purchasers and allow such Investorthe Purchasers, at the Investor's each Purchaser’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order forpreventing disclosure of, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered Purchasers and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Purchasers may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Purchasers may request. Not later than .
(j) If requested by a Purchaser, the date on which Company shall, as soon as practicable, (i) incorporate in a prospectus supplement or post-effective amendment such information as the Purchaser reasonably 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 all required filings of such prospectus supplement or post-effective amendment 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 registering if reasonably requested by the resale Purchaser.
(k) The Company shall use commercially reasonable efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(l) The Company shall otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission in connection with any registration hereunder.
(m) Within two (2) Business Days after a Registration Statement that covers Registrable Securities is declared effectiveeffective by the Commission, the Company shall deliver to its transfer agent instructionsthe Transfer Agent (with copies to the Purchasers) confirmation that such Registration Statement has been declared effective by the Commission.
(n) Notwithstanding anything to the contrary herein, accompanied by at any reasonably required time after the Effectiveness 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 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 permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The the Company shall take all other reasonable actions necessary promptly (i) notify the Purchasers 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 Purchasers) and facilitate disposition the date on which the Grace Period will begin, and (ii) notify the Purchasers in writing of the date on which the Grace Period ends; and, provided further, that the Grace Periods shall not exceed an aggregate of thirty (30) Trading Days during any three hundred sixty-five (365)-day period and the first (1st) day of any Grace Period must be at least fifteen (15) 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 Purchasers receive the notice referred to in clause (i) and shall end on and include the later of the date the Purchasers receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 5.4(d) 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 Investors first sentence of Section 5.4(d) 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 Transfer Agent to deliver unlegended shares of Common Stock to a transferee of any Purchaser in accordance with the terms of this Agreement in connection with any sale of Registrable Securities pursuant with respect to which a Purchaser has entered into a contract for sale, and delivered a copy of the prospectus included as part of the applicable Registration StatementStatement (unless an exemption from such prospectus delivery requirement exists), prior to the Purchaser’s receipt of the notice of a Grace Period and for which the Purchaser has not yet settled.
(o) Neither the Company nor any Subsidiary or Affiliate shall identify any Purchaser as an underwriter in any public disclosure or filing with the Commission or any applicable Trading Market without the prior written consent of such Purchaser, and any Purchaser being deemed an underwriter by the Commission shall not relieve the Company of any obligations it has under this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Cocrystal Pharma, Inc.)
RELATED OBLIGATIONS. a. The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as Investor has disposed 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 Investors shall have sold all the Registrable Securities and Shares or (Bb) none of all Registrable Shares are may be freely resold by the Preferred Shares is outstanding Investor without any limitations under Rule 144 (the "“Registration Period"”), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 Shares of the Company covered by the such Registration Statement(s) Statement until such time as all of such Registrable Securities Shares shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of 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’s 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 “Exchange Act”), the Company shall have incorporated such report by reference into the Registration Statement(s)Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
c. The Company shall furnish to each the Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement as declared effective by the SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities Shares owned by such Investor.
d. The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities Shares covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities Shares for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (aw) make any change to its certificate of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Investor of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of any of the Company and Registrable Shares for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its stockholdersreceipt of actual notice of the initiation or threat of any proceeding for such purpose.
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 eventevent or development, the Company shall notify each the Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify the Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Shares for sale in any jurisdiction within the United States of America 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 each the Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. g. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldInvestor, the Company shall furnishfurnish to each Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as the Investor may reasonably request (i) if required by an underwriter, a letter, dated such date, from the Company's ’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 advance blanket legal opinion, dated as of such date, of counsel representing the Company for purposes of such Registration Statement, relating to (1) the issuance of the Registrable Shares without legend, and (2) the subsequent sale of the Registrable Shares under the Registration Statement (so long as it is then effective) for cash at current market prices on the Principal Market through a registered broker-dealer. Each Investor acknowledges that until sold in formthe manner described above, scope the Registrable Shares shall continue to represent “Restricted Stock” within the meaning of the federal securities laws, and substance that any other transaction pursuant to which the Investor desires to remove such classification, including private sales of the Registrable Shares, will require a separate legal opinion as of each such transaction establishing conformity with the terms of the form of registration statement to be relied upon (which is customarily given anticipated to be form S-1), notwithstanding that the Registrable Shares do not bear a restrictive legend. Each Investor further acknowledges that should it place the Registrable Shares in an underwritten public offeringstreet name in the account of a broker-dealer, addressed that such broker-dealer will be required to abide by the underwriters and terms of the Investorsblanket advance legal opinion.
j. h. The Company shall make available for inspection by (i) any Investor, the Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investor (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 to enable each Inspector them to exercise its their due diligence responsibility, and cause the Company's ’s officers, directors and employees to supply all information which any Inspector may reasonably request for purposes in connection with the Registration Statement. The Investor agrees that Records obtained by it as a result of such due diligence; provided, however, that each Inspector inspections which is conspicuously marked by the Company as "Confidential" (subject to the Company’s obligations with respect to material non-public information set forth in Section 8.1(a) herein) shall hold be deemed confidential and held in strict confidence and shall not make any disclosure (except to an by the Investor) or use of any 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 StatementStatement or is otherwise required under the Securities 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 agreementagreement of which the Inspector and the Investor has knowledge. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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. i. The Company shall hold in confidence and not make any disclosure of information concerning an the Investor provided to the Company 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 an the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such the Investor and allow such the Investor, at the Investor's ’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. j. The Company shall use its best efforts either to (i) cause all the Registrable Securities Shares covered by a Registration Statement (i) to be listed on each national securities exchange 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 Shares is then permitted under the rules of such exchange, exchange or (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register Primary Market. The Company shall pay all fees and expenses in connection with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securitiessatisfying its obligation under this Section 3(j).
m. k. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, Investor to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legendlegend subject to the terms of the blanket advance opinion letter referenced in Section 3(g)) representing the Registrable Securities Shares to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Investor may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Investor may request. Not .
l. The Company shall use its best efforts to cause the Registrable Shares covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Shares.
m. The Company shall make generally available to its security holders as soon as practical, but not later than one hundred(100) days after the close of the period covered thereby, an earnings statement (in 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 on which of the Registration Statement.
n. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
o. Within five (5) business days after a Registration Statement registering which covers Registrable Shares is ordered effective by the resale of Registrable Securities is declared effectiveSEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Shares (with copies to the Investor) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. p. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors Investor of Registrable Securities Shares pursuant to a Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (China Shoe Holdings, Inc.)
RELATED OBLIGATIONS. At such time as the Company is obligated to file a Registration Statement with the SEC pursuant to Section 2(a) or 2(c), the Company will use its reasonable best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, pursuant thereto, the Company shall have the following obligations:
a. The Company shall use its best efforts submit to cause the SEC, within five (5) 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 of the SEC has no further comments on a particular Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement(s) relating Statement to Registrable Securities to become effective as soon as possible a time and date not later than 48 hours after the submission of such filing, and request. The Company shall keep the each Registration Statement(s) 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 without restriction pursuant to Rule 144(k) (or successor thereto) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "Registration Period"), which . The Company shall ensure that each Registration Statement(s) 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 thereintherein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement(sStatement 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-KSB, Form 10-QSB 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 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 furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by an Investor and not otherwise available on the XXXXX system, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number upon the effectiveness of any Registration Statement, ten (10) copies of a prospectus, including a preliminary prospectus, the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. e. The Company shall use its reasonable efforts 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(s) Statement under such other securities or "blue sky" laws of such all applicable jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United 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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d3(e), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threatening of any proceeding 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 offeringpurpose.
f. As 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 each Investor of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, and use its best efforts nonpublic information), and, subject to Section 3(r), promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor (or such other number of copies as such Investor may reasonably request). The Company shall also promptly notify each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. i. The Company shall use its reasonable best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the a Registration Statement on the Nasdaq National Market System orMarket, or (iii) if, despite the Company's reasonable best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the The Nasdaq SmallCap Market for such Registrable Securities and, without limiting the generality of the foregoing, to use its reasonable best efforts 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, or (iv) if, despite the Company's best efforts, the Company is unsuccessful in satisfying the preceding clauses (i)-(iii), to secure the inclusion for quotation of all Registrable Securities on the NASD's OTC Bulletin Board. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(k).
m. j. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective.
k. If requested by an Investor, the Company shall deliver (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as an Investor reasonably 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) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by an Investor holding any Registrable Securities.
l. The Company shall use its reasonable best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
m. The Company shall make generally available to its transfer agent instructionssecurity holders as soon as practical, accompanied by any reasonably required opinion but not later than ninety (90) days after the close of counselthe period covered thereby, that permit sales an earnings statement (in form complying with, and in the manner provided by, the provisions of unlegended securities in Rule 158 under the 0000 Xxx) covering a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionstwelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of a Registration Statement.
n. The Company shall take otherwise use its reasonable efforts to comply with all other reasonable actions necessary to expedite applicable rules and facilitate disposition regulations of the SEC in connection with any registration hereunder.
o. Within two (2) Business Days after a Registration Statement which covers Registrable Securities is ordered effective by the SEC, the Company shall make every reasonable effort to deliver, and shall make every reasonable effort to cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies to the 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 II. p 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 (a "Grace Period"); provided, that the Company shall promptly (i) notify the Investors in writing of the existence of a Grace Period in conformity with the provisions of this Section 3(r)(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 fifteen (15) consecutive Business Days and during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of (30) Business 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 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 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 (Smart Video Technologies Inc)
RELATED OBLIGATIONS. a. (a) The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) Statement effective pursuant to Rule 415 at all times until the earlier of (i) the date as of on 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 Investors Investor shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "covered by such Registration Period")Statement, which Registration Statement(s) 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; or (ii) all Registrable Securities can be sold pursuant to Rule 144(k) (the “Registration Period”).
b. (b) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of 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’s 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 incorporate such report by reference into the Registration Statement(s)Statement, if applicable, or shall file such amendments or supplements with the SEC within two business days of the date on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
c. (c) The Company shall furnish to each Investor whose Registrable Securities are included in the any Registration Statement(s) and its legal counsel Statement, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received at least one (1) copy of such Registration Statement as declared effective by the Company, one copy of the Registration Statement SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of ten (10) copies of a prospectus, including a preliminary prospectus, the final prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. (d) The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (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 (aw) make any change to its articles of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. (e) As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each Investor in writing of the happening of any event, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of ten (10) copies of such supplement or amendment to each Investor. The Company shall also promptly notify each Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor may reasonably requestby facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. (f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s(g) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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, Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, one (iii1) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investors (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's ’s officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; provided, however, that each Inspector shall agree, and each Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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 StatementStatement or is otherwise required under the Securities 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. The Company shall not be required to disclose any confidential information in such Records to any agreement of which the Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j)Investor 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. (h) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's ’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. (i) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement (i) to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 OTC Bulletin Board for such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(j).
m. (j) The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
(k) The Company shall use 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 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 one hundred five (105) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve (12) month period beginning not later than the first day of the Company’s fiscal quarter next following the effective date on which of the Registration Statement.
(m) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.
(n) Within two (2) business days after a Registration Statement registering the resale of which covers Registrable Securities is declared effectiveeffective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.the form attached hereto as Exhibit A.
n. (o) The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Investor Registration Rights Agreement (SaVi Media Group, Inc.)
RELATED OBLIGATIONS. a. The Company shall use its best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors Investor shall be able to sell all Registrable Securities without regard to the volume limitations under Rule 144 or the Investor shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding covered by such Registration Statement (the "Registration Period"), which Registration Statement(s) 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.
b. . The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) 1933 Act, as may be necessary to keep the such Registration Statement(s) 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 the Registration Statement(s) until such time as earlier of the date on which the Investor shall be able to sell all Registrable Securities without regard to the volume limitations under Rule 144 or all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of 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's filing a report on Form 10K, Form 10Q or Form 8K 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(s).
c. 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 the Registration Statement. The Company shall furnish to each the Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the such Registration Statement as declared effective by the SEC and any amendment amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus and prospectus and each amendment or supplement theretoprospectus, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. . The Company shall use reasonable its best efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; providedPROVIDED, howeverHOWEVER, that the Company shall not be required in connection therewith or as a condition thereto to (aw) make any change to its articles of incorporation or by-laws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Investor of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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. purpose. As promptly as practicable after becoming aware of such eventevent or development, the Company shall notify each the Investor in writing of the happening of any event, of which the Company has knowledge, event or development as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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 misleadingmisleading (provided that in no event shall such notice contain any material, nonpublic information), and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Investor. The Company shall also promptly notify the Investor as in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Investor may reasonably request.
g. by facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction within the United States of America 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 each the Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm thereof or its receipt of counsel, designated as selling stockholders' counsel by the Investors who hold a majority actual notice of the Registrable Securities being soldinitiation or threat of any proceeding for such purpose. Notwithstanding the foregoing, if at any time or from time to review and comment upon time after the date of effectiveness of the Registration Statement(s) and all amendments and supplements thereto Statement, the Company notifies Investor in writing of the existence of a reasonable period Potential Material Event ("Blackout Notice"), Investor shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the Registrable Securities, from the time of time prior the giving of notice with respect to their filing with a Potential Material Event until Investor receives written notice from the SEC, and not file any document in Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a form to which such counsel reasonably objects.
i. Potential Material Event. At the reasonable request of the Investors who hold a majority of the Registrable Securities being soldInvestor, the Company shall furnishfurnish to the Investor, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with of the effectiveness of the Registration Statement and thereafter from time to time on such dates as the 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. Investor. The Company shall make available for inspection by (i) any Investor, the Investor and (ii) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all such underwriters Investor (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 to enable each Inspector to exercise its due diligence responsibilityInspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligencerequest; providedPROVIDED, howeverHOWEVER, that each Inspector shall agree, and the Investor hereby agrees, to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (ax) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration StatementStatement or is otherwise required under the 1933 Act, (by) 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 (cz) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreementagreement of which the Inspector and the Investor has knowledge. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 the Investor provided to the Company 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 final 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 an the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such the Investor and allow such the Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. . The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market American Stock Exchange for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register Securities. The Company shall pay all fees and expenses in connection with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities.
m. satisfying its obligation under this Section 3(k). The Company shall cooperate with the Investors who hold Registrable Securities being offered and, Investor to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Investor may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Investor may request. Not later than The Company shall use its best efforts to cause the date on which any Registrable Securities covered by the applicable Registration Statement registering to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the resale disposition of such Registrable Securities. The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder. Within two (2) business days after a Registration Statement which covers Registrable Securities is declared effectiveordered effective by the SEC, the Company shall deliver deliver, and shall cause legal counsel for the Company to its deliver, to the transfer agent instructions, accompanied for such Registrable Securities (with copies to the Investor) confirmation that such Registration Statement has been declared effective by any reasonably required opinion of counsel, that permit sales of unlegended securities the SEC in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. the form attached hereto as Exhibit A. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors Investor of Registrable Securities pursuant to a Registration Statement. OBLIGATIONS OF THE INVESTOR. The Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(f) or the first sentence of Section 3(e), the Investor will immediately discontinue disposition of Registrable Securities pursuant to any Registration Statement(s) covering such Registrable Securities until the Investor's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(e) or receipt of notice that no supplement or amendment is required. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended certificates for shares of Common Stock to a transferee of the Investor in accordance with the terms of the Stock Purchase Agreement in connection with any sale of Registrable Securities with respect to which the Investor has entered into a contract for sale prior to the Investor's receipt of a notice from the Company of the happening of any event of the kind described in Section 3(f) or the first sentence of Section 3(e) and for which the Investor has not yet settled.
Appears in 1 contract
Samples: Registration Rights Agreement (Computerized Thermal Imaging Inc)
RELATED OBLIGATIONS. a. The With respect to the Registration Statement and whenever any Registrable Securities are to be registered pursuant to Sections 2(a) and (c), including on any New Registration Statement, the Company shall use its reasonable best efforts to cause such Registration Statement(s) relating to Registrable Securities to become effective as soon as possible after such filing, and keep effect the Registration 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 registration of the Registrable Securities without restriction in accordance with the intended method of disposition thereof and, pursuant to Rule 144(k) promulgated under thereto, the 1933 Act (or successor thereto), or (ii) the date on which (A) the Investors Company shall have sold all the Registrable Securities and (B) none of the Preferred Shares is outstanding (the "Registration Period"), which Registration 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.following obligations:
b. a. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the any Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with the such Registration Statement(s) Statement, as may be necessary to keep the Registration Statement(s) Statement or any New Registration Statement effective at all times during the Registration Period, subject to Permitted Delays and Section 3(e) 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 the Registration Statement(s) Statement or any New 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 seller or sellers thereof as set forth in such Registration Statement. Should the Company file a post-effective amendment to the Registration Statement(sStatement or a New Registration Statement, the Company will use its reasonable best efforts to have such filing declared effective by the SEC within thirty (30) consecutive Business Days following the date of filing, which such period shall be extended for an additional thirty (30) Business Days if the Company receives a comment letter from the SEC in connection therewith. If (i) there is material non-public information regarding the Company which the Company’s Board of Directors reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Company’s Board of Directors reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under a Registration Statement or a New Registration Statement, then the Company may postpone or suspend filing or effectiveness of such Registration Statement or New Registration Statement or use of the prospectus under the Registration Statement or New Registration Statement for a period not to exceed thirty (30) consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(a) for more than sixty (60) days in the aggregate during any twelve (12) month period (each, a “Permitted Delay”).
c. b. The Company shall submit to the Buyer for review and comment any disclosure in the Registration Statement, any New Registration Statement and all amendments and supplements thereto (other than prospectus supplements that consist only of a copy of a filed Form 10-K, Form 10-Q or a Current Report on Form 8-K or any amendment as a result of the Company’s filing of a document that is incorporated by reference into the Registration Statement or New Registration Statement) containing information provided by the Buyer for inclusion in such document and any descriptions or disclosure regarding the Buyer, the Purchase Agreement, including the transaction contemplated thereby, or this Agreement at least two (2) Business Days prior to their filing with the SEC, and not file any document in a form to which Buyer reasonably and timely objects. Upon request of the Buyer, the Company shall provide to the Buyer all disclosure in the Registration Statement or any New Registration Statement and all amendments and supplements thereto (other than prospectus supplements that consist only of a copy of a filed Form 10-K, Form 10-Q or Current Report on Form 8-K or any amendment as a result of the Company’s filing of a document that is incorporated by reference into the Registration Statement or New Registration Statement) at least two (2) Business Days prior to their filing with the SEC, and not file any document in a form to which Buyer reasonably and timely objects. The Buyer shall use its reasonable efforts to comment upon the Registration Statement or any New Registration Statement and any amendments or supplements thereto within two (2) Business Days from the date the Buyer receives the final version thereof. The Company shall furnish to each Investor whose Registrable Securities are included in the Buyer, without charge, any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to the Registration Statement(s) and its legal counsel Statement or any New Registration Statement.
c. Upon request of the Buyer, the Company shall furnish to the Buyer, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, at least one copy of the Registration Statement and any amendment amendment(s) thereto, each preliminary prospectus including financial statements and prospectus schedules, all documents incorporated therein by reference and each amendment or supplement theretoall exhibits, and (ii) such number of copies upon the effectiveness of a prospectusRegistration Statement, including a preliminary prospectus, copy of the prospectus included in such Registration Statement and all amendments and supplements thereto and (or such other documents number of copies as the Buyer may reasonably request) and (iii) such Investor other documents, including copies of any preliminary or final prospectus, as the Buyer may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investorthe Buyer.
d. The Company shall use reasonable best efforts to (i) register and qualify qualify, unless an exemption from registration and qualification is available, the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "“blue sky" ” laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered Buyer reasonably request (but in no event in more than five states of the United States)requests, (ii) subject to Permitted Delays, 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 (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify the Buyer who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or “blue sky” laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threat of any proceeding 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 offeringpurpose.
f. As e. Subject to Permitted Delays, as promptly as reasonably practicable after becoming aware of such eventevent or facts, the Company shall notify each Investor of the happening of any event, of which Buyer in writing if the Company has knowledge, as a result of which determined that the prospectus included in a any 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, and use as promptly as reasonably practical (taking into account the Company’s good faith assessment of any adverse consequences to the Company and its best efforts promptly to stockholders of premature disclosure of such event or facts) prepare a prospectus supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and and, upon the Buyer’s request, deliver such number of copies a copy of such prospectus supplement or amendment to each Investor the Buyer. In providing this notice to the Buyer, the Company shall not include any other information about the facts underlying the Company’s determination and shall not in any way communicate any material nonpublic information about the Company or the Common Stock to the Buyer. The Company shall also promptly notify the Buyer in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Buyer by facsimile or e-mail on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to any Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate. In no event shall the delivery of a notice under this Section 3(e), or the resulting unavailability of a Registration Statement, without regard to its duration, for disposition of securities by Buyer be considered a breach by the Company of its obligations under this Agreement. The preceding sentence in this Section 3(e) does not limit whether an event of default has occurred as such Investor may reasonably requestset forth in Section 9(a) of the Purchase Agreement.
g. f. The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a any Registration Statement, or the suspension of the qualification of any 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 practical time and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) Buyer of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. g. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by if the Registration Statement on the Nasdaq National Principal Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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 term is defined in the Purchase Agreement) is an automated quotation system. The Company shall pay all fees and expenses in connection with respect to such Registrable Securitiessatisfying its obligation under this Section.
m. h. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, Buyer to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a any Registration Statement and enable such certificates to be in such denominations or amounts, amounts as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors Buyer may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors Buyer may request. Not later than .
i. The Company shall at all times provide a transfer agent and registrar with respect to its Common Stock.
j. If reasonably requested by the date on which Buyer, the Company shall (i) promptly incorporate in a prospectus supplement or post-effective amendment to the Registration Statement such information as the Buyer believes should 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 sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities; (ii) make all required filings of such prospectus supplement or post-effective amendment promptly 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 registering (including by means of any document incorporated therein by reference).
k. The Company shall use its reasonable best efforts to cause the resale of Registrable Securities covered by any Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary to consummate the disposition of such Registrable Securities.
l. Within one (1) Business Day after any Registration Statement is declared effectiveordered effective by the SEC, the Company shall deliver to its transfer agent instructionsthe Transfer Agent for such Registrable Securities (with copies to the Buyer) confirmation that such Registration Statement has been declared effective by the SEC in the form attached hereto as Exhibit A. Thereafter, accompanied if reasonably requested by the Buyer, the Company shall deliver to the Buyer a written confirmation of whether or not the effectiveness of such Registration Statement has lapsed at any reasonably required opinion time for any reason (including, without limitation, the issuance of counsel, that permit sales a stop order) and whether or not the Registration Statement is currently effective and available to the Buyer for sale of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionsall of the Registrable Securities.
n. m. The Company shall agrees to take all other reasonable actions as necessary and reasonably requested by the Buyer to expedite and facilitate disposition by the Investors Buyer of Registrable Securities pursuant to a any Registration Statement.
Appears in 1 contract
RELATED OBLIGATIONS. At such time as the Company is obligated to file 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, 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 (on or prior to the Scheduled Filing Date) for the registration of Registrable Securities pursuant to Section 2(a) and use its best efforts to cause such Registration Statement(s) Statements relating to the Registrable Securities to become effective as soon as possible after such filingfiling (but, in no event later than one hundred twenty (120) days after the initial Closing Date). The Company shall not file any other Registration Statement with respect to any of its securities between the date hereof and 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(s) 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 Rule 144(k) promulgated under the 1933 Securities Act (or successor thereto), ) or (ii) the date on which (A) the Investors shall have sold all the Registrable Securities covered by such Registration Statement and (B) none of the Preferred Shares Convertible Note or Warrants is outstanding (the "Registration PeriodREGISTRATION PERIOD"), which Registration Statement(s) 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 submit to the SEC, within three 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 the Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than 48 hours after the submission of such request. The Company shall not cause any other registration statement of the Company to be declared effective by the SEC prior to the earlier of (i) the 45th day after the Registration Statement is declared effective by the SEC and (ii) the sale of all of the Registrable Securities.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement that 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-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 file such amendments or supplements with the SEC on the same day or as soon as practicably thereafter on which the Exchange Act report is filed that created the requirement for the Company to amend or supplement the Registration Statement(s)Statement.
c. The Company shall furnish to each Investor whose Registrable Securities are included in the Registration Statement(s) and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of the Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor.
d. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the a Registration Statement(s) Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered any Investor reasonably request (but in no event in more than five states of the United States)requests, (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 (ax) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d3(c), (by) subject itself to general taxation in any such jurisdiction, or (cz) file a general consent to service of process in any such jurisdiction, (d) provide . The Company shall promptly notify each Investor who holds Registrable Securities of the receipt by the Company of any undertakings that cause more than nominal expense or burden notification with respect to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors suspension of the Company determines to be contrary to the best interests registration or qualification of the Company and its stockholders.
e. In the event Investors who hold a majority any of the Registrable Securities being offered for sale under the securities or "blue sky" laws of any jurisdiction in the offering select underwriters United States or its receipt of actual notice of the initiation or threatening of any proceeding 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 offeringpurpose.
f. 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, of which the Company has knowledge, event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the such Registration Statement to correct such untrue statement or omission, and deliver such number of copies a copy of such supplement or amendment to each Investor (or such other number of copies as such Investor may reasonably request). The Company shall also promptly notify each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to each Investor by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. e. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of 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 each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereofthereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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. f. The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (i) disclosure of such information is necessary to comply with federal 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 an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. g. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure the designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System orSmallCap Market, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (iiii) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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(g).
m. h. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, applicable to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not .
i. The Company shall provide a transfer agent and registrar of all such Registrable Securities not later than the effective date on which any of such Registration Statement registering the resale of Registrable Securities is declared effectiveStatement.
j. If requested by an Investor, the Company shall deliver (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the Investors agree should be included therein relating to the sale and distribution of Registrable Securities; (ii) make all required filings of such prospectus supplement or post-effective amendment as soon as 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 requested by an Investor of such Registrable Securities.
k. The Company shall use 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 consummate the disposition of such Registrable Securities.
l. The Company shall make generally available to its transfer agent instructionssecurity holders as soon as practical, accompanied by but not later than 90 days after the close of the period covered thereby, an earnings statement (in 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 its best efforts to comply with all applicable rules and regulations of the SEC in connection with any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactionsregistration hereunder.
n. Within seven (7) business days after a Registration Statement that covers applicable Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies to the 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. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the 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
RELATED OBLIGATIONS. At such time as the Company is obligated to prepare and file 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 method of disposition thereof and, with respect thereto, the Company shall have the following obligations:
a. The Company shall use its best efforts to cause such Registration Statement(s) Statement relating to the Registrable Securities to become effective as soon as possible within one hundred twenty (120) calendar days after the Filing Date and shall keep such filing, and keep the Registration Statement(s) 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 without restriction pursuant to Rule 144(k) promulgated under the 1933 Securities Act (or successor thereto), or (ii) until the date on which (A) the Investors Holder shall have sold all the Registrable Securities and (B) none of or the Preferred Shares is outstanding included therein otherwise cease to be Registrable Securities (the "“Registration Period"”), which Registration Statement(s) 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.
b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement(s) Statement and the prospectus(es) prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 under the Registration Statement(s) Securities Act, as may be necessary to keep the such Registration Statement(s) 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 the such Registration Statement(s) 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 seller or sellers thereof Holder as set forth in such Registration Statement. In the Registration Statement(s).
c. The Company shall furnish to each Investor whose Registrable event the number of shares of Securities are included in the Registration Statement(s) and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of the available under a Registration Statement and filed pursuant to this Agreement is at any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and time insufficient to cover all amendments and supplements thereto and such other documents as such Investor may reasonably request in order to facilitate the disposition 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 Securities owned by 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 Investor.
d. shares are authorized. The Company shall use reasonable it best efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement(s) under cause such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold forty percent or more of the Registrable Securities being offered reasonably request (but in no event in more than five states of the United 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 (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), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause more than nominal expense or burden to the Company, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
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 of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or 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, and use its best efforts promptly to prepare a supplement or amendment to the and/or new Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Investor become effective as such Investor may reasonably request.
g. The Company shall use its best efforts to prevent soon as practicable following the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution filing thereof.
h. The Company shall permit a single firm of counsel, designated as selling stockholders' counsel by the Investors who hold a majority of the Registrable Securities being sold, to review and comment upon the Registration Statement(s) and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
i. At the request of the Investors who hold a majority of the Registrable Securities being sold, the Company shall furnish, on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (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) any underwriter participating in any disposition pursuant to a Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Investors, and (iv) one firm of attorneys retained by all 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 to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any 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, (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. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(j). 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 Company 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 or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor and allow such Investor, at the Investor's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
l. The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange 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 (ii) secure designation and quotation of all the Registrable Securities covered by the Registration Statement on the Nasdaq National Market System or, if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or (ii), to secure the inclusion for quotation on the Nasdaq SmallCap Market 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.
m. The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, any managing underwriter or underwriters, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or, if there is no managing underwriter or underwriters, the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request. Not later than the date on which any Registration Statement registering the resale of Registrable Securities is declared effective, the Company shall deliver to its transfer agent instructions, accompanied by any reasonably required opinion of counsel, that permit sales of unlegended securities in a timely fashion that complies with then mandated securities settlement procedures for regular way market transactions.
n. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to a Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Home Bistro, Inc. /NV/)
