Removal of Legends. The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 5.1(b), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (a) Each Purchaser agrees to the imprinting, so long as is required by this Section 5.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (b) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (c) Certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) shall not contain any legend (including the legend set forth in Section 5.1(a) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section 5.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 5.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 8 contracts

Samples: Securities Purchase Agreement (60 Degrees Pharmaceuticals, Inc.), Securities Purchase Agreement (60 Degrees Pharmaceuticals, Inc.), Securities Purchase Agreement (60 Degrees Pharmaceuticals, Inc.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (cd) Certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (de) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (ef) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 8 contracts

Samples: Securities Purchase Agreement (Innovative Payment Solutions, Inc.), Securities Purchase Agreement (Innovative Payment Solutions, Inc.), Securities Purchase Agreement (Innovative Payment Solutions, Inc.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company at its sole cost may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Restricted Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each~~ The Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, ~~such~~ the Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (c) Certificates evidencing the Shares and the Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities ~~Act (the “Effective Date”)~~Act, (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections~~ Section 4(a)(1~~) and 4(a)(7)~~ ), judicial interpretations and pronouncements issued by the staff of the SEC) (the “Effective Date”). The Company shall~~, if any of the provisions in clause (i) –(iv) above are applicable~~, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections~~ Section 4(a)(1~~) and 4(a)(7~~), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to ~~such~~ the Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by ~~such~~ the Purchaser~~. The Company shall be responsible for any delays caused by its Transfer Agent~~. (d) In addition to ~~such~~ the Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of ~~the principal amount~~ per share purchase price and exercise price, respectively, of ~~the Notes being converted or the value of the~~ Shares and Warrant Shares ~~for which a Warrant is being exercised~~ (based on the VWAP of the Common Stock on the date such Shares and/or Warrant ~~Exercise Price~~Shares are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth (5th) Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000 for the first ten(10) Trading Days. Nothing herein shall limit ~~such~~ the Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and ~~such~~ the Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date ~~such~~ the Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by ~~such~~ the Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that ~~such~~ the Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to ~~such~~ the Purchaser, in cash, an amount equal to the excess of ~~such~~ the Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to ~~such~~ the Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by ~~such~~ the Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, ~~Transfer Agent~~ transfer agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that ~~such~~ the Purchaser or anyone associated or affiliated with ~~such~~ the Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of ~~such~~ the Purchaser in the amount of the greater of (i) ~~150~~15% of the amount of the aggregate purchase price of the Shares ~~(based on amount of principal and/or interest of the Note which was converted)~~ and Warrant Shares ~~(based on exercise price in effect upon exercise)~~ which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to ~~such~~ the Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 5 contracts

Samples: Securities Purchase Agreement (OncBioMune Pharmaceuticals, Inc), Securities Purchase Agreement (OncBioMune Pharmaceuticals, Inc), Securities Purchase Agreement (OncBioMune Pharmaceuticals, Inc)

Removal of Legends. (a) The ~~Shares, the Warrants and Warrant Shares~~ Securities may only be disposed of in compliance with U.S. state and U.S. federal securities laws. In connection with any transfer of ~~the Shares, Warrants or Warrant Shares~~ Securities other than (i) pursuant to an effective registration statement or Rule 144, (ii) to the ~~Company or~~ Company, (iii) to an Affiliate of a Purchaser or (iv) in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration ~~of such transferred Shares, Warrants or Warrant Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on ~~any of~~ the ~~Shares, the Warrants or Warrant Shares~~ Securities substantially in the following ~~form: NEITHER~~ form (in addition to any legend required by applicable state securities or “blue sky” laws): [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS ~~EXERCISABLE HAVE~~ EXERCISABLE] [HAS NOT] [HAVE] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or Warrant Shares~~ Securities to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares or Warrant Shares~~ Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares and Warrant Shares~~ Securities may reasonably request in connection with a pledge or transfer of the ~~Shares or Warrant Shares~~Securities. (c) Certificates or book entry notations evidencing the ~~Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form)~~ Securities shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): ), and the Company shall take such actions as may be necessary to remove any such legend: (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or Warrant Shares~~ Securities pursuant to Rule ~~144,~~ 144 or (iii) if such ~~Shares or Warrant Shares~~ Securities are eligible for sale under Rule ~~144, without the requirement for the Company to be in compliance with the current public information required under Rule~~ 144 ~~as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions~~ or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If ~~all or any portion of a Note is converted or a Warrant is exercised at a time when~~ there is an effective registration statement to cover the resale of the ~~Shares or the Warrant Shares~~Securities, or if such ~~Shares or Warrant Shares~~ Securities may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then the certificates or book entry notations evidencing such ~~Shares or Warrant Shares~~ Securities shall be ~~issued or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or Warrant Shares~~Securities, as applicable, issued with a restrictive legend (such second (2nd) Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. Certificates for ~~Shares or Warrant Shares~~ Securities subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated~~ a certificate representing Securities issued with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favorrestrictive legend.

Appears in 4 contracts

Samples: Securities Purchase Agreement (DarioHealth Corp.), Securities Purchase Agreement (DarioHealth Corp.), Securities Purchase Agreement (DarioHealth Corp.)

Removal of Legends. (a) The Unregistered Shares, ~~the~~ Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Unregistered Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Unregistered Shares, Warrants or Warrant ~~Shares~~ Shares, as applicable, under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Unregistered Shares, ~~the~~ Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Unregistered Shares, Warrants or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Unregistered Shares, Warrants or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Unregistered Shares, Warrants and Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Unregistered Shares, Warrants or Warrant Shares. (cd) Certificates evidencing the Unregistered Shares and ~~the~~ Warrant Shares (~~or the Transfer Agent’s records if held in book entry form~~together “Restricted Shares”) shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) ~~while a~~ following any sale of such Restricted Shares pursuant to an effective registration statement covering the resale of such ~~securities is effective~~ Restricted Shares under the Securities ~~Act (~~Act, including the ~~“Effective Date”),~~ Resale Registration Statement or (ii) following any sale of such ~~Shares or Warrant~~ Restricted Shares pursuant to Rule ~~144~~144 (assuming, with respect to Warrant Shares, the cashless exercise of the Warrants), or (iii) if such ~~Shares or Warrant~~ Restricted Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of ~~a Note is converted or~~ a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Warrant Shares or and the Purchaser has delivered a representation letter from its broker that such Warrant ~~Shares~~Shares have been sold pursuant to such registration statement, or if such ~~Shares or~~ Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(d), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted~~ the Restricted Shares ~~or Warrant Shares, as applicable,~~ issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or Warrant~~ Restricted Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated~~ a certificate representing Restricted Shares issued with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favorrestrictive legend.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Petros Pharmaceuticals, Inc.), Securities Purchase Agreement (Petros Pharmaceuticals, Inc.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (cd) Certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Shares or Warrant Shares pursuant to and in compliance with Rule 144, or (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any of the provisions in clause (i) –(iviii) above are applicable, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section 5.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 5.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, ~~(i)~~ it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Innovative Payment Solutions, Inc.), Securities Purchase Agreement (Innovative Payment Solutions, Inc.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(c), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, ~~the~~ Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured such Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate time and at such Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares ~~and~~ or Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares~~. (c) Certificates~~ . The Company shall cause to be removed any restrictive legend from the certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) ~~shall not contain any legend~~ (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ Securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, assuming cashless exercise of the Warrants, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) ), judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the ~~effective date of any registration statement~~ Effective Date or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(d), it will, no later than ~~two~~ the three Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other ~~legends~~legends (or provide evidence of issuance in book entry form). The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to such Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. Certificates for the Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to ~~the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company~~ such system as directed by ~~such~~ each Purchaser~~. The Company shall be responsible for any delays caused by its Transfer Agent~~. (de) In addition to such Purchaser’s other available remedies, ~~(i)~~ the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Innovation1 Biotech Inc.), Securities Purchase Agreement (Innovation1 Biotech Inc.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(c), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, ~~the~~ Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured such Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate time and at such Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares ~~and~~ or Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares~~. (c) Certificates~~ . The Company shall cause to be removed any restrictive legend from the certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) ~~shall not contain any legend~~ (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ Securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, assuming cashless exercise of the Warrants, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) ), judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the ~~effective date of any registration statement~~ Effective Date or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(d), it will, no later than ~~two~~ the three Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other ~~legends~~legends (or provide evidence of issuance in book entry form). The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to such Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. Certificates for the Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to ~~the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company~~ such system as directed by ~~such~~ each Purchaser~~. The Company shall be responsible for any delays caused by its Transfer Agent~~. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Innovation1 Biotech Inc.), Securities Purchase Agreement (Innovation1 Biotech Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a the Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Warrant or Warrant Shares, ~~Warrants or Warrant Shares~~ as applicable, under the Securities Act. (ab) ~~Each~~ The Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of ~~the Shares,~~ the Warrants or Warrant Shares in the following form: ~~NEITHER~~ [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS ~~EXERCISABLE HAVE~~ EXERCISABLE] HAS [NOT] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS ~~SECURITY~~ SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. The Warrant Shares shall be imprinted with any such legend if (i) a registration statement covering the resale of such security is not effective under the Securities Act, (ii) they are not eligible for sale under Rule 144, or (iii) if otherwise required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission). For so long as the Warrant Shares are imprinted with any such legend, they may only be exchanged for Restricted ADSs, as such term is defined in and subject to Section 2.14 of the Deposit Agreement. (bc) The Company acknowledges and agrees that a the Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Warrants or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Warrants or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Warrants and Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Warrants or Warrant Shares. (cd) ~~Certificates evidencing the Shares~~ The Warrant Shares, and ~~the Warrant Shares (or the Transfer Agent’s records if held in book entry form)~~ any certificate representing such shares, shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), or (iii) if such ~~Shares or~~ Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the ~~Transfer Agent~~ Depositary or the Purchaser promptly ~~after the Effective Date~~ if required by the ~~Transfer Agent~~ Depositary to effect the removal of the legend hereunder, or if requested by the Purchaser, respectively. If all or any portion of ~~a Note is converted or~~ a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Warrant Shares, or if such ~~Shares or~~ Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the two (2) Trading Days following the delivery by a the Purchaser to the Company or the ~~Transfer Agent~~ Depositary of a certificate representing ~~restricted Shares or~~ Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the ~~Transfer Agent~~ Depositary that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Warrant Shares subject to legend removal hereunder shall be transmitted by the ~~Transfer Agent~~ Depositary to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser~~. The Company shall be responsible for any delays caused by its Transfer Agent~~. (de) In addition to such Purchaser’s other available remedies, ~~(i)~~ the Company shall pay to a the Purchaser, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of ~~the principal amount of the Notes being converted or the value of the~~ Warrant Shares ~~for which a Warrant is being exercised~~ (based on the ~~Warrant Exercise Price~~VWAP of the ADSs on the date such Securities are submitted to the Depositary) delivered for removal of the restrictive legend after the Legend Removal Date and subject to Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date ~~(increasing to $20 per Trading Day after the fifth Trading Day)~~ until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to the Purchaser by the Legend Removal Date a certificate representing the Securities so delivered to the Company by such Purchaser that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) ~~shares of Common Stock~~ Ordinary Shares to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of ~~shares of Common Stock~~Ordinary Shares, or a sale of a number of ~~shares of Common Stock~~ Ordinary Shares equal to all or any portion of the number of ~~shares of Common Stock~~ Ordinary Shares, that such Purchaser anticipated receiving from the Company without any restrictive ~~legend~~legend because such Purchaser did not in fact receive unlegended securities in accordance with the terms hereof, ~~then, the Company shall pay to such Purchaser, in cash,~~ then an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the ~~shares of Common Stock~~ Ordinary Shares so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of ~~Shares or~~ Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the ~~Common Stock~~ Ordinary Shares on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable ~~Shares or~~ Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (ef) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the The Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be ~~payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor~~issued free of legends.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Addex Therapeutics Ltd.), Securities Purchase Agreement (Addex Therapeutics Ltd.)

Removal of Legends. (a) The ~~Shares, the~~ Purchase Warrants and Purchase Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Purchase Warrants or Purchase Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Purchase Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Purchase Warrants or Purchase Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Purchase Warrants or Purchase Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Purchase Warrants or Purchase Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Purchase Warrants and Purchase Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Purchase Warrants or Purchase Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Purchase Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Purchase Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Purchase Warrants), or (iii) if such ~~Shares or~~ Purchase Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Purchase Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Purchase Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Purchase Warrant Shares, or if such ~~Shares or~~ Purchase Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Purchase Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Purchase Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Purchase Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Purchase Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Purchase Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Recruiter.com Group, Inc.), Securities Purchase Agreement (AppTech Payments Corp.)

Removal of Legends. (a) The ~~Shares, the~~ Common Warrants and Common Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Common Warrants or Common Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants~~ Common Warrant or such Common Warrant ~~Shares~~ Share under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Common Warrants or Common Warrant Shares in the following form: ~~NEITHER~~ [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS ~~EXERCISABLE HAVE~~ EXERCISABLE] [HAS NOT] [HAVE] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Common Warrants or Common Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Common Warrants or Common Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Common Warrants and Common Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Common Warrants or Common Warrant Shares. (cd) Certificates (or book entries) evidencing the ~~Shares and the~~ Common Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, (ii) following any sale of such ~~Shares or~~ Common Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Common Warrants), (iii) if such ~~Shares or~~ Common Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Common Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Common Warrant Shares, or if such ~~Shares or~~ Common Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC)~~ Commission), then such ~~Shares or~~ Common Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate (or a request in the case of Common Warrant Shares held in book entry) representing ~~restricted Shares or~~ Common Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate (or a book-entry statement representing such ~~Shares or Warrant Shares~~ shares) that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Common Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of delivery of a certificate (or a request in the ~~delivery by such Purchaser to the Company~~ case of ~~the applicable Shares or~~ Common Warrant Shares ~~(as the case may be~~held in book entry) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of representing Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favorissued with a restrictive legend.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Lixte Biotechnology Holdings, Inc.), Securities Purchase Agreement (Athersys, Inc / New)

Removal of Legends. (a) The ~~Shares~~Warrants, ~~the Warrants~~ Warrant ADSs and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares~~Warrants, ~~Warrants~~ Warrant ADSs or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares~~Warrants, ~~the Warrants~~ Warrant ADSs or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Warrants, Warrant ADSs or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Warrants, Warrant ADSs or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Warrants and Warrant ~~Shares~~ ADSs may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Warrants or Warrant ~~Shares~~ADSs. (c) Certificates evidencing the ~~Shares~~ Warrant ADSs and ~~the~~ Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities Act (and in the ~~“Effective Date”~~case of affiliates, in connection with a specific contemplated resale), or (ii) following any sale of such Warrant Shares or Warrant ~~Shares~~ ADSs pursuant to Rule 144, or (iii) if such ~~Shares~~ Warrant ADSs or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the ~~Transfer Agent~~ Depositary promptly ~~after the Effective Date~~ if required by the ~~Transfer Agent~~ Depositary to effect the removal of the legend hereunder. If all or any portion of ~~a Note is converted or~~ a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares~~ Warrant ADSs or ~~the~~ Warrant Shares, or if such ~~Shares~~ Warrant ADSs or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares~~ Warrant ADSs or Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than ~~two~~ the earlier of (i) three Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the ~~Transfer Agent~~ Depositary of a certificate representing ~~restricted Shares~~ Warrant ADSs or Warrant Shares, as applicable, issued with a restrictive legend (such ~~second~~ third Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ securities that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the ~~Transfer Agent~~ Depositary that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. Certificates for ~~Shares or~~ Warrant ~~Shares~~ ADSs subject to legend removal hereunder shall be transmitted by the ~~Transfer Agent~~ Depositary to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal primary Trading Market with respect to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing ADSs as in effect on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated~~ a certificate representing Warrant ADSs issued with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favorrestrictive legend.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Medigus Ltd.), Securities Purchase Agreement (Medigus Ltd.)

Removal of Legends. (a) The ~~Shares, the~~ Common Warrants and Common Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Common Warrants or Common Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants~~ Common Warrant or such Common Warrant ~~Shares~~ Share under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Common Warrants or Common Warrant Shares in the following form: ~~NEITHER~~ [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS ~~EXERCISABLE HAVE~~ EXERCISABLE] [HAS NOT] [HAVE] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Common Warrants or Common Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Common Warrants or Common Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Common Warrants and Common Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Common Warrants or Common Warrant Shares. (cd) Certificates (or book entries) evidencing the ~~Shares and the~~ Common Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, (ii) following any sale of such ~~Shares or~~ Common Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Common Warrants), (iii) if such ~~Shares or~~ Common Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Common Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Common Warrant Shares, or if such ~~Shares or~~ Common Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC)~~ Commission), then such ~~Shares or~~ Common Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(d), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 5.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.,

Appears in 2 contracts

Samples: Securities Purchase Agreement (Aspira Women's Health Inc.), Securities Purchase Agreement (Aspira Women's Health Inc.)

Removal of Legends. (a) The ~~Shares~~Warrants, ~~the Warrants~~ Warrant ADSs and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares~~Warrants, ~~Warrants~~ Warrant ADSs or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares~~Warrants, ~~the Warrants~~ Warrant ADSs or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Warrants, Warrant ADSs or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Warrants, Warrant ADSs or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Warrants and Warrant ~~Shares~~ ADSs may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Warrants or Warrant ~~Shares~~ADSs. (cd) Certificates evidencing the ~~Shares~~ Warrant ADSs and ~~the~~ Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities Act (and in the ~~“Effective Date”~~case of affiliates, in connection with a specific contemplated resale), or (ii) following any sale of such Warrant Shares or Warrant ~~Shares~~ ADSs pursuant to Rule 144, or (iii) if such ~~Shares~~ Warrant ADSs or Warrant Shares are eligible for sale without restriction or volume limitations under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the ~~Transfer Agent~~ Depositary promptly ~~after the Effective Date~~ if required by the ~~Transfer Agent~~ Depositary to effect the removal of the legend ~~hereunder~~hereunder subject to receipt of customary certifications from the Purchaser in connection with such opinion. If all or any portion of ~~a Note is converted or~~ a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares~~ Warrant ADSs or ~~the~~ Warrant Shares, or if such ~~Shares or~~ Warrant ~~Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares~~ ADSs or Warrant Shares may be sold under Rule 144 without ~~the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares~~ restriction or ~~Warrant Shares and without~~ volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) limitations then such ~~Shares~~ Warrant ADSs or Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the ~~Transfer Agent~~ Depositary of a certificate representing ~~restricted Shares~~ Warrant ADSs or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ securities that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the ~~Transfer Agent~~ Depositary that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. Certificates for ~~Shares or~~ Warrant ~~Shares~~ ADSs subject to legend removal hereunder shall be transmitted by the ~~Transfer Agent~~ Depositary to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal primary Trading Market with respect to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing ADSs as in effect on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated~~ a certificate representing Warrant ADSs issued with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favorrestrictive legend.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Kitov Pharma Ltd.), Securities Purchase Agreement (Kitov Pharma Ltd.)

Removal of Legends. (a) The ~~Shares, the~~ Purchase Warrants and the Purchase Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Purchase Warrants or Purchase Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares,~~ Purchase Warrants or Purchase Warrant Shares under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Purchase Warrants or Purchase Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Purchase Warrants or Purchase Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Purchase Warrants or Purchase Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Purchase Warrants and Purchase Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Purchase Warrants or Purchase Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Purchase Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Purchase Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Purchase Warrants), or (iii) if such ~~Shares or~~ Purchase Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Purchase Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or a Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by such Purchaser; provided, however, that if any such legal opinion relates to legend removal, or sale of Securities, pursuant to Rule 144, such opinion may be qualified in the event that the Company then fails for any reason to satisfy the current public information requirement under Rule 144(c). If all or any portion of a ~~Note is converted or a~~ Purchase Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Purchase Warrant Shares, or if such ~~Shares or~~ Purchase Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Purchase Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Purchase Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Purchase Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Purchase Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Purchase Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Titan Pharmaceuticals Inc), Securities Purchase Agreement (Titan Pharmaceuticals Inc)

Removal of Legends. (a) The Preferred Shares, the Conversion Shares, Warrants and the Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Preferred Shares, the Conversion Shares, Warrants or the Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Preferred Shares, the Conversion Shares, Warrants or Warrant Shares under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Preferred Shares, the Conversion Shares, Warrants or the Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS [CONVERTIBLE] EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON [CONVERSION] EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Preferred Shares, the Conversion Shares, Warrants or the Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Preferred Shares, the Conversion Shares, Warrants or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Preferred Shares, the Conversion Shares, Warrants and Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Preferred Shares, the Conversion Shares, Warrants or Warrant Shares. (c) Certificates evidencing the Conversion Shares ~~and~~ or the Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such Conversion Shares or Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), or (iii) if such Conversion Shares or Warrant Shares are eligible for sale under Rule ~~144, without the requirement for the Company to be in compliance with the current public information required under Rule~~ 144 ~~as to such Shares or Warrant Shares and~~ without volume or manner-of-sale ~~restrictions~~ limitations (assuming cashless exercise of the Warrants), or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or a Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of ~~a Note is converted or~~ a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Warrant Shares, or if such ~~Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or~~ Warrant Shares may be sold under Rule 144 without ~~the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without~~ volume or manner-of-sale ~~restrictions~~ limitations (assuming cashless exercise of the Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted~~ the Conversion Shares or Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. Certificates for Conversion Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser~~. The Company shall be responsible for any delays caused by its Transfer Agent~~. (d) In addition to such Purchaser’s other available remedies, ~~(i)~~ the Company shall pay to a Purchaser, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of ~~the principal amount of the Notes being converted~~ Conversion Shares or ~~the value of the~~ Warrant Shares ~~for which a Warrant is being exercised~~ (based on the ~~Warrant Exercise Price~~VWAP of the shares of Common Stock on the date such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date ~~(increasing to $20 per Trading Day after the fifth Trading Day)~~ until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to a Purchaser by the Legend Removal Date a certificate representing the Securities so delivered to the Company by such Purchaser that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common ~~Stock~~ Stock, that such Purchaser anticipated receiving from the Company without any restrictive legend, ~~then, the Company shall pay to such Purchaser, in cash,~~ then an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Conversion Shares ~~or Warrant~~ orWarrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the shares of Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In The Preferred Shares, the ~~event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1~~ Conversion Shares, the Warrants and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be ~~payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor~~issued free of legends.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Infinity Energy Resources, Inc), Securities Purchase Agreement (Infinity Energy Resources, Inc)

Removal of Legends. (a) The ~~Shares, the~~ Series A Warrants and the Series A Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Series A Warrants or Series A Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.18(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants~~ Series A Warrant or Series A Warrant Shares under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.18, of a legend on any of the ~~Shares, the~~ Series A Warrants or the Series A Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES ~~INTO~~ FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT ~~WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT~~ OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Series A Warrants or the Series A Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Series A Warrants or the Series A Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Series A Warrants and the Series A Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Series A Warrants or the Series A Warrant Shares; provided that the pledged Series A Warrant Shares shall continue to reflect the legend set forth in this Section 4.18(b) unless and until such legend can be removed in accordance with Section 4.18(e). (c) Certificates evidencing the ~~Shares and the~~ Series A Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.18(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Series A Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Series A Warrants), or (iii) if such ~~Shares or~~ Series A Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Series A Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Series A Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Series A Warrant Shares, or if such ~~Shares or~~ Series A Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Series A Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Series A Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.18(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Series A Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.18. ~~Certificates for Shares or~~ Series A Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Series A Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Sg Blocks, Inc.), Securities Purchase Agreement (Presidio Property Trust, Inc.)

Removal of Legends. (a) The Shares, ~~the~~ Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the~~ Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights and obligations of a Purchaser under this Agreement. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, ~~the~~ Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Shares, Warrants or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Shares, Warrants or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Shares, Warrants and Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Shares, Warrants or Warrant Shares. (c) Certificates evidencing the Shares ~~and~~ or the Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without ~~the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without~~ volume or ~~manner-of-sale restrictions~~ limitations or other restrictions, or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of ~~a Note is converted or~~ a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Warrant Shares, or if ~~such~~ Shares or such Warrant Shares may be sold under Rule ~~144 and the Company is then in compliance with the current public information required under Rule~~ 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or ~~manner-of-sale restrictions~~ other limitations or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such Shares or and Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than ~~two~~ three Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted~~ Shares or Warrant Shares, as applicable, issued with a restrictive legend (such ~~second~~ third Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 5.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent4. (d) ~~In addition~~ Notwithstanding anything to ~~such Purchaser’s other available remedies~~the contrary contained in this Agreement, ~~(i)~~ if the Company ~~shall pay~~ elects in its discretion to file a ~~Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000~~ registration statement under the Securities Act covering the resale of the ~~principal amount of the Notes being converted~~ Shares or ~~the value of~~ the Warrant Shares ~~for which~~ by the Purchasers (and to seek to have such registration statement become effective) (such registration statement, a ~~Warrant is being exercised (based on the Warrant Exercise Price~~“Resale Registration Statement”), ~~$20 per Trading Day for~~ each ~~Trading Day after~~ Purchaser, severally and not jointly, agrees to reasonably cooperate with the ~~Legend Removal Date (increasing to $20 per Trading Day after~~ Company in connection therewith, sell Securities only in compliance with the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documentsplan of distribution set forth therein, ~~and such Purchaser shall have the right to pursue all remedies available to it at law or in equity~~ including, without limitation, ~~a decree of specific performance and/or injunctive relief,~~ providing such information and ~~(ii) if after the Legend Removal Date~~ entering into such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (agreements with respect thereto as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained are reasonably requested by the Company ~~and the Company has posted a surety bond for the benefit of~~ or customary in connection with such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favorresale registration statements.

Appears in 1 contract

Samples: Subscription Agreement (Acura Pharmaceuticals, Inc)

Removal of Legends. (a) The ~~Shares, the~~ Unregistered Warrants and Unregistered Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Unregistered Warrants or Unregistered Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Unregistered Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Unregistered Warrants or Unregistered Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE BEEN~~ HASBEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Unregistered Warrants or Unregistered Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Unregistered Warrants or Unregistered Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Unregistered Warrants and Unregistered Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Unregistered Warrants or Unregistered Warrant Shares. (cd) Certificates evidencing the ~~Shares and the~~ Unregistered Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Unregistered Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Unregistered Warrants), or (iii) if such ~~Shares or~~ Unregistered Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Unregistered Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of ~~a Note is converted or a~~ an Unregistered Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Unregistered Warrant Shares, or if such ~~Shares or~~ Unregistered Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Unregistered Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Unregistered Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Unregistered Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. Certificates for ~~Shares or~~ Unregistered Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Unregistered Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (NXT-Id, Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Series A Warrants and Series A Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Series A Warrants or Series A Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants~~ Series A Warrant or Series A Warrant Shares under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Series A Warrants or Series A Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Series A Warrants or Series A Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Series A Warrants or Series A Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Series A Warrants and Series A Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Series A Warrants or Series A Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Series A Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Series A Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Series A Warrants), or (iii) if such ~~Shares or~~ Series A Warrant Shares ~~are eligible for sale~~ (assuming cashless exercise) may be sold under Rule ~~144,~~ 144 without the requirement for the Company to be in compliance with ~~the current public information required under~~ Rule ~~144 as~~ 144(c)(1) and otherwise without restriction or limitation pursuant to ~~such Shares or Warrant Shares and without volume or manner-of-sale restrictions~~ Rule 144, or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Series A Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Series A Warrant Shares, or if such ~~Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or~~ Series A Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with ~~the current public information required under~~ Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144 ~~as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions~~ or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Series A Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Series A Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Series A Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Series A Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Biocept Inc)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (cd) ~~Certificates~~ The Company shall cause to be removed any restrictive legend from the certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) ~~shall not contain any legend~~ (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ Securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, assuming cashless exercise of the Warrants, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) ), judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any of the provisions in clause (i) –– (iv) above are applicable, at its expense, cause its counsel, or at the option of any Purchaser, counsel determined by such Purchaser to issue a legal opinion to the Transfer Agent ~~promptly after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, subject to compliance with the Securities Act and/or Rule 144. If The Company shall pay all ~~or any portion~~ costs associated with such opinions. For avoidance of doubt, the Company agrees that after a ~~Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale~~ two-year holding period (including periods where tacking permitted by Rule 144) following issuance of ~~the~~ Shares or ~~the~~ Warrant Shares, ~~or if such Shares or Warrant Shares~~ the legend may be ~~sold~~ removed under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements Section 4(a)(1) of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legendsAct. The Company agrees that following the ~~effective date of any registration statement~~ Effective Date or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(d), it will, no later than the earlier of (i) two Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other ~~legends~~legends (or provide evidence of issuance in book entry form). The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to such Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of a certificate representing the Shares or Warrant Shares, as applicable. Certificates for the Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to ~~the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company~~ such system as directed by ~~such~~ each Purchaser~~. The Company shall be responsible for any delays caused by its Transfer Agent~~. (de) In addition to such Purchaser’s other available ~~remedies, (i)~~ remedies the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and ~~(ii)~~ if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(e). (ef) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (American Rebel Holdings Inc)

Removal of Legends. (a) The applicable Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a the Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the ~~transferor~~ transferor, provided that the Company shall pay the transferor’s cost thereof, to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. The Company shall instruct its transfer agent to accept the opinion of counsel selected by the Purchaser, subject to compliance with the Securities Act and shall reimburse the Purchaser $750 per opinion within two Trading Days after receipt of each opinion. (ab) ~~Each~~ The Purchaser ~~agrees~~ agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, ~~AS AMENDED~~ (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a the Purchaser may from ~~time to~~ time-to-time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, ~~such~~ the Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the ~~appropriate~~ Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (c) Certificates evidencing the Shares ~~and the~~ or Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, (ii) following any sale of such Shares or Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), or (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company shall~~, if any of the provisions in clause (i) –(iv) above are applicable~~, at its expense, cause its counsel, or at the option of the Purchaser, counsel determined by the Purchaser, to issue a legal opinion to ~~the Transfer Agent promptly after the Effective Date if required by~~ the Transfer Agent to effect the removal of the legend hereunder, subject to compliance with the Securities Act and/or Rule 144 For the avoidance of doubt, the Company shall pay all costs associated with such opinions. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or ~~Warrant Shares may be sold under Rule 144 and~~ the ~~Company is then in compliance with the current public information required under Rule 144, or if the Shares or~~ Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information ~~required under~~ requirements of Rule ~~144 as to such Shares or Warrant Shares~~ 144(c) and without volume or ~~manner-of-~~manner of sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) ~~and~~ or 4(a)(7), judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission including what is known as Section 4(a)(1½)) then such Shares or Warrant Shares shall be issued ~~or reissued~~ free of all legends. For avoidance of doubt, the Company agrees that after a two-year holding period (including periods where tacking permitted by Rule 144) following issuance of Shares or Warrant Shares, the legend may be removed under Section 4(a)(1) of the Securities Act. The Company agrees that ~~following the effective date of any registration statement or~~ at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than the earlier of (i) two Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a the Purchaser to the Company or the Transfer Agent of a certificate (or medallion guaranteed stock power if issued in book entry form) representing ~~restricted~~ Shares or Warrant Shares, as applicable, issued ~~with~~ without a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to ~~such~~ the Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other ~~legends~~legends (or provide evidence of issuance in book entry form). The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. Certificates for ~~Shares or Warrant~~ Underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by ~~such~~ the Purchaser. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of a certificate representing Underlying Shares, as applicable, issued with a restrictive legend. Certificates for the Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the transfer agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of deliver of a certificate representing Shares or Warrant Shares, as applicable, issued with a restrictive legend. The Company acknowledges and agrees that the Purchaser may from time-to-time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, the Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be ~~responsible~~ required in connection therewith. Further, no notice shall be required of such pledge. At such Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares or Warrant Shares may reasonably request, including, if the Shares or Warrant Shares have been registered for resale pursuant to a registration statement, the preparation and filing of any ~~delays caused by its Transfer Agent~~required prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of selling stockholders thereunder. (d) In addition to ~~such~~ the Purchaser’s other available remedies, (i) the Company shall pay to a the Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the ~~Notes~~ Note being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit ~~such~~ the Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any ~~Securities~~ Shares or Warrant Shares as required by the Transaction Documents, and ~~such~~ the Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date ~~such~~ the Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by ~~such~~ the Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that ~~such~~ the Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to ~~such~~ the Purchaser, in cash, an amount equal to the excess of ~~such~~ the Purchaser’s total purchase price (including brokerage commissions mxxx-ups and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions mxxx-ups and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to ~~such~~ the Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by ~~such~~ the Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a the Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended ~~shares~~shares and such request is not in violation of US securities laws, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, ~~Transfer Agent~~ transfer agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that ~~such~~ the Purchaser or anyone associated or affiliated with ~~such~~ the Purchaser has not complied with the Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of ~~such~~ the Purchaser in the amount of the greater of (i) ~~150~~15% of the amount of the aggregate purchase price of the Shares ~~(based on amount of principal and/or interest of the Note which was converted)~~ and Warrant Shares ~~(based on exercise price in effect upon exercise)~~ which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to ~~such~~ the Purchaser to the extent the Purchaser obtains judgment in the Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (American International Holdings Corp.)

Removal of Legends. (a) The ~~Shares, the~~ Common Warrants and Common Warrant Shares issuable thereunder may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Warrants or Warrant Shares issuable thereunder other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Common Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Common Warrants or and Common Warrant Shares issuable thereunder in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser (other than an officer or director of the Company) may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or~~ Common Warrants and Common Warrant Shares issuable thereunder to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares or~~ Common Warrants and Common Warrant Shares issuable thereunder to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Common Warrants and Common Warrant Shares issuable thereunder may reasonably request in connection with a pledge or transfer of the Common Warrants and Common Warrant Shares ~~or Warrant Shares~~issuable thereunder. (c) Certificates evidencing the ~~Shares and the~~ Common Warrant Shares ~~(or~~ issuable upon exercise of the ~~Transfer Agent’s records if held in book entry form)~~ Common Warrants shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Common Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Common Warrants), or (iii) if such ~~Shares or~~ Common Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Common Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively, subject to the receipt of documentation and representations as customary for the issuance of such opinion. If all or any portion of a ~~Note is converted or a~~ Common Warrant is exercised at a time when there is an effective registration statement and prospectus to cover the resale of the Common Warrant Shares or issuable thereunder by the ~~Warrant Shares~~applicable holder thereof, or if such ~~Shares or~~ Common Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Common Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Common Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than ~~two~~ the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ such Common Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends; provided, however, that for purposes of this Section 4.1(c), if such certificate and request meeting the requirements of this section are delivered after 12:00 p.m. Eastern time, the date of delivery of such certificate and request will be deemed to be the Trading Day following the date on which such certificate and request was delivered. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Common Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent.~~ As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days (~~d) In addition to such Purchaser’s other available remedies, (i)~~ including no Trading Days if the ~~Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of~~ settlement date is the ~~principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price~~trade date), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for on the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Common Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Fortress Biotech, Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Series A-7 Warrants and Series A-7 Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Series A-7 Warrants or Series A-7 Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Series A-7 Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Series A-7 Warrants or Series A-7 Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Series A-7 Warrants or Series A-7 Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Series A-7 Warrants or Series A-7 Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Series A-7 Warrants and Series A-7 Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Series A-7 Warrants or Series A-7 Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Series A-7 Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Series A-7 Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Series A-7 Warrants), or (iii) if such ~~Shares or~~ Series A-7 Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Series A-7 Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Series A-7 Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Series A-7 Warrant Shares, or if such ~~Shares or~~ Series A-7 Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Series A-7 Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Series A-7 Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Series A-7 Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Series A-7 Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Series A-7 Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Baudax Bio, Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Common Warrants and Common Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Common Warrants or Common Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants~~ Common Warrant or such Common Warrant ~~Shares~~ Share under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Common Warrants or Common Warrant Shares in the following form: ~~NEITHER~~ [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS ~~EXERCISABLE HAVE~~ EXERCISABLE] [HAS NOT] [HAVE] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Common Warrants or Common Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Common Warrants or Common Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Common Warrants and Common Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Common Warrants or Common Warrant Shares. (cd) Certificates evidencing the ~~Shares and the~~ Common Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Common Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Common Warrants), or (iii) if such ~~Shares or~~ Common Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Common Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Common Warrant Shares, or if such ~~Shares or~~ Common Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Common Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Common Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a ~~certificate~~ book entry statement representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Common Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Common Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Reviva Pharmaceuticals Holdings, Inc.)

Removal of Legends. (a) The applicable Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Warrants or Warrant Shares other than pursuant to an effective ~~registration statement~~ Resale Registration Statement or Rule 144, to the Company or to an Affiliate of a each Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the ~~transferor~~ transferor, provided that the Company shall pay the transferor’s cost thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser ~~agrees~~ agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, ~~AS AMENDED~~ (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a each Purchaser may from ~~time to~~ time-to-time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, each Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At each Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (c) Certificates evidencing the Shares or Warrant Shares shall not contain any legend (including the legend set forth in Section 4.1(b) hereof): (i) while a Resale Registration Statement covering the resale of such security is effective under the Securities Act, (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, when available (assuming cashless exercise of the Warrants), or (iii) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission). The Company shall at its expense cause its counsel, or at the option of any Purchaser, counsel determined by such Purchaser, to issue a legal opinion to the Transfer Agent to effect the removal of the legend hereunder, subject to compliance with the Securities Act and/or Rule 144, when available. For the avoidance of doubt the Company shall pay all costs associated with such opinions. If all or any portion of a Note is converted or Warrant is exercised at a time when there is an effective Resale Registration Statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or the Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information requirements of Rule 144(c) and without volume or manner of sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) or 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC including what is known as Section 4(a)(1½)) then such Shares or Warrant Shares shall be issued free of all legends. For avoidance of doubt, the Company agrees that after the requisite holding period to comply with Rule 144, the legend may be removed under Rule 144 of the Securities Act, assuming the holder satisfies the requirements of Rule 144. The Company agrees that at such time as such legend is no longer required under this Section 4.1(c), it will, no later than the earlier of (i) two Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by any Purchaser to the Company or the Transfer Agent of a certificate (or medallion guaranteed stock power if issued in book entry form) representing Shares or Warrant Shares, as applicable, issued without a restrictive legend (such date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such shares that is free from all restrictive and other legends (or provide evidence of issuance in book entry form). The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 4. Certificates for Shares and Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to such Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company Principal Market with respect to the Common Stock as in effect on the date of delivery of a certificate representing Shares and Warrant Shares, as applicable, issued with a restrictive legend. Certificates for the Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the transfer agent to such Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. The Company acknowledges and agrees that any Purchaser may from time-to-time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At ~~the appropriate~~ such Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares ~~and~~ or Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (c) Certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) shall not contain any legend (including the legend set forth in Section 5.1(a) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”)request, ~~(ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144~~including, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares ~~may be sold~~ have been registered for resale pursuant to a Resale Registration Statement, the preparation and filing of any required prospectus supplement under Rule ~~144 without~~ 424(b)(3) under the ~~requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares~~ Securities Act or ~~Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under~~ other applicable ~~requirements~~ provision of the Securities Act ~~(including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by~~ to appropriately amend the ~~staff~~ list of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section 5.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 5.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agentselling stockholders thereunder. (d) In addition to ~~such~~ each Purchaser’s other available remedies, (i) the Company shall pay to a such Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the ~~Notes~~ Note being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit ~~such~~ any Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any ~~Securities~~ Shares or Warrant Shares as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date ~~such~~ any Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, ~~in cash,~~ an amount of cash equal to the excess of such Purchaser’s total purchase price (including brokerage commissions mark-ups and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions mark-ups and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to ~~such~~ the Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a any Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended ~~shares~~shares and such request is not in violation of United States securities laws, (i) it such Purchaser shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, ~~Transfer Agent~~ transfer agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with such Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) ~~150~~15% of the amount of the aggregate purchase price of the Shares ~~(based on amount of principal and/or interest of the Note which was converted)~~ and Warrant Shares ~~(based on exercise price in effect upon exercise)~~ which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent such Purchaser obtains judgment in such Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Tuatara Capital Acquisition Corp)

Appears in 1 contract

Samples: Securities Purchase Agreement (Helix TCS, Inc.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (c) Certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall~~, if any of the provisions in clause (i) –(iv) above are applicable~~, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Transportation & Logistics Systems, Inc.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the ~~transferor~~ transferor, provided that the Company shall pay the transferor’s cost thereof, to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: For U.S. Persons NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF ~~1933, AS AMENDED~~ 1933 (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. . For Non-U.S. Persons NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER REGULATION S (b“REGULATION S”) PROMULGATED UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”). ACCORDINGLY, UNLESS SO REGISTERED, NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE, MAY BE OFFERED OR SOLD IN THE UNITED STATES OR, DIRECTLY OR INDIRECTLY, TO U.S. PERSONS (AS DEFINED IN REGULATION S) EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THIS SECURITY AND THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE SECURITIES ACT. The Company acknowledges and agrees that a Purchaser may from time to ~~time~~ time, subject to compliance with the requirements of Regulation S (to the extent applicable), pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (c) Certificates evidencing the Shares and the Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the ~~legend~~ legends set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities ~~Act (the “Effective Date”)~~Act, (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections~~ Section 4(a)(1~~) and 4(a)(7)~~ ), judicial interpretations and pronouncements issued by the staff of the SEC) (the “Effective Date”). The Company shall~~, if any of the provisions in clause (i) –(iv) above are applicable~~, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion ~~of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover~~ the ~~resale of the Shares or the Warrant Shares, or if such~~ Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections~~ Section 4(a)(1~~) and 4(a)(7~~), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than two (2) Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser~~. The Company shall be responsible for any delays caused by its Transfer Agent~~. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the ~~principal amount of the Notes being converted or the~~ value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth (5th ) Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000 for the first ten (10) Trading Days. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any ~~Securities~~ Shares (including Warrant Shares) as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, ~~Transfer Agent~~ transfer agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock,; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) ~~150~~15% of the amount of the aggregate purchase price of the Shares ~~(based on amount of principal and/or interest of the Note which was converted)~~ and Warrant Shares ~~(based on exercise price in effect upon exercise)~~ which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor. (f) Each Purchaser, severally and not jointly with the other Purchasers, agrees that such Purchaser will sell any Shares pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Shares are sold pursuant to a Registration Statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing Shares as set forth in this Section 4.1 is predicated upon the Company’s reliance upon this understanding.

Appears in 1 contract

Samples: Securities Purchase Agreement (Sport Endurance, Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Series O Warrants and Series O Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Series O Warrants or Series O Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants~~ Series O Warrant or Series O Warrant Shares under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Series O Warrants or Series O Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Series O Warrants or Series O Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Series O Warrants or Series O Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Series O Warrants and Series O Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Series O Warrants or Series O Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Series O Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ Series O Warrant Shares is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Series O Warrant Shares ~~pursuant to~~ in compliance with Rule ~~144~~144 (assuming cashless exercise of the Series O Warrants), or (iii) if such ~~Shares or~~ Series O Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Series O Warrants) without restriction or limitation, including without the requirement ~~for the Company~~ to be in compliance with ~~the current public information required under~~ Rule ~~144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions~~ 144(c)(1), or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder~~. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares~~, or if ~~such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144~~requested by a Purchaser, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legendsrespectively. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Series O Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Series O Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent~~As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of a certificate representing Series O Warrant Shares issued with a restrictive legend. Each Purchaser acknowledges and agrees that the Series O Warrant Shares remain “restricted securities” as such term is defined in Rule 144 notwithstanding removal of the legend set forth above until such Series O Warrant Shares are sold or transferred under an effective registration statement under the 1933 Act or under Rule 144. (d) In addition to such Purchaser’s other available remedies, ~~(i)~~ the Company shall pay to a Purchaser, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of ~~the principal amount of the Notes being converted or the value of the~~ Series O Warrant Shares ~~for which a Warrant is being exercised~~ (based on the VWAP of the Common Stock on the date such Series O Warrant ~~Exercise Price~~Shares are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day five Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date ~~(increasing to $20 per Trading Day after the fifth Trading Day)~~ until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to a Purchaser by the Legend Removal Date a certificate representing the Series O Warrant Shares so delivered to the Company by such Purchaser that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of ~~shares of Common Stock~~Warrant Shares, ~~or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock~~ that such Purchaser anticipated receiving from the Company without any restrictive ~~legend~~legend in compliance with Section 4.1(c), ~~then, the Company shall pay to such Purchaser, in cash,~~ then an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of ~~Shares or~~ shares of Common Stock so purchased in lieu of Series O Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable ~~Shares or~~ Series O Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d) and the Company shall deliver to the Purchaser the number of Series O Warrant Shares delivered for removal of the restrictive legend and subject to Section 4.1(c). (e) In The Shares, the ~~event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1~~ Series P Warrants and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Series P Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be ~~payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor~~issued free of legends.

Appears in 1 contract

Samples: Securities Purchase Agreement (Real Goods Solar, Inc.)

Removal of Legends. (a) The ~~Shares~~Warrants, ~~the Warrants~~ Warrant ADSs and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares~~Warrants, ~~Warrants~~ Warrant ADSs or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares~~Warrants, ~~the Warrants~~ Warrant ADSs or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Warrants, Warrant ADSs or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Warrants, Warrant ADSs or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Warrants and Warrant ~~Shares~~ ADSs may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Warrants or Warrant ~~Shares~~ADSs. (cd) Certificates evidencing the ~~Shares~~ Warrant ADSs and ~~the~~ Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities Act (and in the ~~“Effective Date”~~case of affiliates, in connection with a specific contemplated resale), or (ii) following any sale of such Warrant Shares or Warrant ~~Shares~~ ADSs pursuant to Rule 144, or (iii) if such ~~Shares~~ Warrant ADSs or Warrant Shares are eligible for sale without restriction or volume limitations under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the ~~Transfer Agent~~ Depositary promptly ~~after the Effective Date~~ if required by the ~~Transfer Agent~~ Depositary to effect the removal of the legend ~~hereunder~~hereunder subject to receipt of customary certifications from the Purchaser in connection with such opinion. If all or any portion of ~~a Note is converted or~~ a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares~~ Warrant ADSs or ~~the~~ Warrant Shares, or if such ~~Shares or~~ Warrant ~~Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares~~ ADSs or Warrant Shares may be sold under Rule 144 without ~~the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares~~ restriction or ~~Warrant Shares and without~~ volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) limitations then such ~~Shares~~ Warrant ADSs or Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than ~~two~~ the earlier of (i) three Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the ~~Transfer Agent~~ Depositary of a certificate representing ~~restricted Shares~~ Warrant ADSs or Warrant Shares, as applicable, issued with a restrictive legend (such ~~second~~ third Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ securities that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the ~~Transfer Agent~~ Depositary that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. Certificates for ~~Shares or~~ Warrant ~~Shares~~ ADSs subject to legend removal hereunder shall be transmitted by the ~~Transfer Agent~~ Depositary to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal primary Trading Market with respect to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing ADSs as in effect on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated~~ a certificate representing Warrant ADSs issued with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favorrestrictive legend.

Appears in 1 contract

Samples: Securities Purchase Agreement (Kitov Pharmaceuticals Holdings Ltd.)

Removal of Legends. (a) The Shares, ~~the~~ Underlying Shares, Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the~~ Shares, Underlying Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants~~ Share or Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, ~~the~~ Underlying Shares, Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Shares, Underlying Shares, Warrants or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Shares, Underlying Shares, Warrants or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At ~~the appropriate~~ a Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Shares, Underlying Shares, Warrants and Warrant Shares such Purchaser may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Shares, Underlying Shares, Warrants or Warrant Shares. (c) Certificates evidencing the Underlying Shares ~~and the~~ or Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such Underlying Shares or Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), or (iii) if such Underlying Shares or are eligible for sale under Rule 144, or, assuming cashless exercise of the Warrants, if such Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Warrant is exercised or if a Share is converted at a time when there is an effective registration statement to cover the resale of the Warrant Shares or ~~the Warrant~~ Underlying Shares, as applicable, or if such Warrant Shares or ~~Warrant Shares~~ Underlying Shares, as applicable, may be sold under Rule ~~144 and the Company is then in compliance with the current public information required under Rule~~ 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such Warrant Shares or ~~Warrant~~ Underlying Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than ~~two~~ the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted~~ Warrant Shares or ~~Warrant~~ Underlying Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other ~~legends.~~ legends , so long as, no later than the applicable date in clause (i) or (ii), the Purchaser and the Purchaser’s broker have provided to the Company or the Company’s transfer agent all customary documents and have taken all customary actions requested by the Company’s transfer agent in connection with the foregoing delivery.. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for~~ Warrant Shares or ~~Warrant~~ Underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable~~ a certificate representing Warrant Shares or ~~Warrant~~ Underlying Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Sigma Labs, Inc.)

Removal of Legends. (a) The Preferred Investment Options, the Preferred Investment Option Shares, the ~~Warrants~~ Preferred Stock and ~~Warrant~~ the Conversion Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the~~ Preferred Investment Options, Preferred Investment Option Shares, ~~Warrants~~ Preferred Stock or ~~Warrant Shares~~ Conversion Shares, other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a the Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(d), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Preferred Investment Options, Preferred Investment Option Shares, ~~Warrants~~ Preferred Stock or ~~Warrant~~ Conversion Shares under the Securities Act. (ab) ~~Each~~ The Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Preferred Investment Options, Preferred Investment Option Shares, ~~the Warrants~~ Preferred Stock or ~~Warrant~~ Conversion Shares substantially in the following form: : (c) NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ OR CONVERTIBLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OR CONVERSION OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bd) The Company acknowledges and agrees that a the Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or Warrant Shares~~ Securities to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, ~~such~~ the Purchaser may transfer pledged or secured ~~Shares or Warrant Shares~~ Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares and Warrant Shares~~ the Securities may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Securities, including, if the Securities are subject to registration pursuant to the Registration Rights Agreement, the preparation and filing of any required prospectus supplement under Rule 424(b)(3) under the Securities Act or ~~Warrant Shares~~other applicable provision of the Securities Act to appropriately amend the list of Selling Stockholders (as defined in the Registration Rights Agreement) thereunder. (ce) Certificates evidencing the Preferred Investment Option Shares and ~~the Warrant~~ Conversion Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(c) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, (ii) following any sale of such Preferred Investment Option Shares or ~~Warrant~~ Conversion Shares pursuant to Rule ~~144~~144 (assuming, in the case of Preferred Investment Option Shares, cashless exercise of the Preferred Investment Options), (iii) if such Preferred Investment Option Shares or ~~Warrant~~ Conversion Shares are eligible for sale under Rule ~~144~~144 (assuming, ~~without~~ in the ~~requirement for~~ case of Preferred Investment Option Shares, cashless exercise of the ~~Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions~~ Preferred Investment Options), or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by the Purchaser, respectively. If all or any portion of a ~~Note~~ Preferred Investment Option is exercised or the Preferred Stock is converted ~~or a Warrant is exercised~~ at a time when there is an effective registration statement to cover the resale of the Preferred Investment Option Shares or ~~the Warrant~~ Conversion Shares, or if such Preferred Investment Option Shares or ~~Warrant~~ Conversion Shares may be sold under Rule 144 ~~and~~ (assuming, in the ~~Company is then in compliance with~~ case of Preferred Investment Options, cashless exercise of the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Preferred Investment Options) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC)~~ Commission), then such Preferred Investment Option Shares or ~~Warrant Shares~~ Conversion Shares, as the case may be, shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(e), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a the Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted~~ Preferred Investment Option Shares or ~~Warrant~~ Conversion Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to ~~such~~ the Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for~~ Preferred Investment Option Shares ~~or Warrant~~ and Conversion Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by ~~such~~ the Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable~~ a certificate representing Preferred Investment Option Shares or ~~Warrant~~ Conversion Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Cytrx Corp)

Removal of Legends. (a) The ~~Shares, the~~ Unregistered Warrants and Unregistered Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Unregistered Warrants or Unregistered Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares,~~ Unregistered Warrants or Unregistered Warrant Shares under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Unregistered Warrants or Unregistered Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Unregistered Warrants or Unregistered Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Unregistered Warrants or Unregistered Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Unregistered Warrants and Unregistered Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Unregistered Warrants or Unregistered Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Unregistered Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Unregistered Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Unregistered Warrants), or (iii) if such ~~Shares or~~ Unregistered Warrant Shares are eligible for sale under Rule ~~144, without the requirement for the Company to be in compliance with the current public information required under Rule~~ 144 ~~as to such Shares or Warrant Shares and~~ without volume or manner-of-sale ~~restrictions~~ limitations (assuming cashless exercise of the Unregistered Warrants), or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or a Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of ~~a Note is converted or a~~ an Unregistered Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Warrant Shares, or if such ~~Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or~~ Unregistered Warrant Shares may be sold under Rule 144 without ~~the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without~~ volume or manner-of-sale ~~restrictions~~ limitations (assuming cashless exercise of the Unregistered Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Unregistered Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Unregistered Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. Certificates for ~~Shares or~~ Unregistered Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal primary Trading Market with respect to the ~~excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of~~ Common ~~Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of~~ Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Unregistered Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Tantech Holdings LTD)

Removal of Legends. a) The ~~Shares, the~~ Ordinary Share Warrants and Ordinary Share Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Ordinary Share Warrants or and Ordinary Share Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Ordinary Share Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Ordinary Share Warrants or and Ordinary Share Warrant Shares in substantially the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or~~ Ordinary Share Warrants and Ordinary Share Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares or~~ Ordinary Share Warrants and Ordinary Share Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Ordinary Share Warrants and Ordinary Share Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares or~~ Ordinary Share Warrants and Ordinary Share Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Ordinary Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Ordinary Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), or (iii) if such ~~Shares or~~ Ordinary Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Ordinary Share Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of ~~a Note is converted or a~~ an Ordinary Share Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Ordinary Warrant Shares, or if such ~~Shares or~~ Ordinary Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Ordinary Share Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Ordinary Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Ordinary Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Ordinary Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent~~As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the ADSs as in effect on the date of delivery of a certificate representing Ordinary Warrant Shares issued with a restrictive legend. (d) In addition to such Purchaser’s other available remedies, ~~(i)~~ the Company shall pay to a Purchaser, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of ~~the principal amount of the Notes being converted or the value of the~~ Ordinary Warrant Shares ~~for which a Warrant is being exercised~~ (based on the ~~Warrant Exercise Price~~VWAP of the ADS on the date such Securities are submitted to the Depositary) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date ~~(increasing to $20 per Trading Day after the fifth Trading Day)~~ until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to a Purchaser by the Legend Removal Date a certificate representing the Securities so delivered to the Company by such Purchaser that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) ~~shares of Common Stock~~ ADSs or Ordinary Shares to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of ~~shares of Common Stock~~ADSs or Ordinary Shares, or a sale of a number of ~~shares of Common Stock~~ ADSs or Ordinary Shares equal to all or any portion of the number of ~~shares of Common Stock~~ ADSs or Ordinary Shares, that such Purchaser anticipated receiving from the Company without any restrictive legend, ~~then, the Company shall pay to such Purchaser, in cash,~~ then an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the ~~shares of Common Stock~~ ADSs or Ordinary Shares so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of ~~Shares or~~ Ordinary Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the ~~Common Stock~~ ADSs or Ordinary Shares on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable ~~Shares or~~ Ordinary Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which The ADSs shall be ~~payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor~~issued free of legends.

Appears in 1 contract

Samples: Securities Purchase Agreement (Steakholder Foods Ltd.)

Removal of Legends. (a) The ~~Shares, the~~ Common Warrants and Common Warrant Shares issuable thereunder may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Warrants or Warrant Shares issuable thereunder other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Common Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Common Warrants or and Common Warrant Shares issuable thereunder in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser (other than an officer or director of the Company) may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or~~ Common Warrants and Common Warrant Shares issuable thereunder to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares or~~ Common Warrants and Common Warrant Shares issuable thereunder to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Common Warrants and Common Warrant Shares issuable thereunder may reasonably request in connection with a pledge or transfer of the Common Warrants and Common Warrant Shares issuable thereunder, including, if the Common Warrants and Common Warrant Shares are subject to registration pursuant to Section ‎4.17 of this Agreement, the preparation, filing, and/or amendment of any registration statement, or ~~Warrant Shares~~of any required prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act to effect such registration. (c) Certificates evidencing the ~~Shares and the~~ Common Warrant Shares ~~(or~~ issuable upon exercise of the ~~Transfer Agent’s records if held in book entry form)~~ Common Warrants shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Common Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Common Warrants and that the requirements of Rule 144(i)(2) are met at such time), or (iii) if such ~~Shares or~~ Common Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Common Warrants and that the requirements of Rule 144(i)(2) are met at such time), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively, subject to the receipt of documentation and representations as customary for the issuance of such opinion. If all or any portion of a ~~Note is converted or a~~ Common Warrant is exercised at a time when there is an effective registration statement and prospectus to cover the resale of the Common Warrant Shares or issuable thereunder by the ~~Warrant Shares~~applicable holder thereof, or if such ~~Shares or~~ Common Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Common Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section 5.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 5.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.Warrant

Appears in 1 contract

Samples: Securities Purchase Agreement (Palladyne AI Corp.)

Removal of Legends. (a) The Series D Shares, the Conversion Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Series D Shares, the Conversion Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Series D Shares, Conversion Shares, Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Series D Shares, Conversion Shares, the Warrants or Warrant Shares in substantially the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Series D Shares, a Warrant, the Conversion Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Series D Shares, a Warrant, Conversion Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Series D Shares, a Warrant, Conversion Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Series D Shares, a Warrant, Conversion Shares or Warrant Shares. (c) Certificates evidencing the Series D Shares, the Conversion Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Series D Shares, Conversion Shares or Warrant Shares pursuant to Rule 144, (iii) if such Series D Shares, Conversion Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Series D Shares, Conversion Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, ~~if any of the provisions in clause (i) –(iv) above are applicable,~~ at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If ~~all or~~ any ~~portion of a Note is~~ Series D Share are converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Conversion Shares or the Warrant Shares, or if such Conversion Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Conversion Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Conversion Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Conversion Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Series D Shares, Conversion Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Series D Shares, Conversion Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for Series D Shares, Conversion Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies, subject to Section 5.18(a) but not Section 5.18(b), (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the ~~principal amount~~ Stated Value of the ~~Notes~~ Series D Shares (as defined in the Series D COD) being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) ~~(the “Buy-In Price”)~~ over the product of (A) such number of Conversion Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Conversion Shares (based on the amount of ~~principal and/or interest~~ the Stated Value of the ~~Note~~ Series D Shares (as defined in the Series D COD) which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor. (f) The Company shall (A) pay the reasonable legal fees of the Purchaser’s choice (provided such counsel is reasonably acceptable to the Company) (in an amount not to exceed $500 per legal opinion, and not more often than once per week per Purchaser) in connection with the conversion of the Series D Shares or the Warrants, and (B) cause its attorneys to promptly provide any opinion or reliance opinion to the Transfer Agent.

Appears in 1 contract

Samples: Securities Purchase Agreement (Mitesco, Inc.)

Removal of Legends. (a) The ~~Shares,~~ Series D Shares and the ~~Warrants and Warrant~~ Conversion Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Series D Shares, ~~Warrants or Warrant~~ and the Conversion Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a the Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Series D Shares, ~~Warrants or Warrant~~ and Conversion Shares under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights and obligations of the Purchaser under this Agreement. (ab) ~~Each~~ The Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Series D Shares, ~~the Warrants or Warrant~~ and Conversion Shares in substantially the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a the Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or Warrant~~ Series D Shares, and the Conversion Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, ~~such~~ the Purchaser may transfer pledged or secured ~~Shares or Warrant~~ Series D Shares, and Conversion Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the ~~appropriate~~ Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Series D Shares, and ~~Warrant~~ Conversion Shares may reasonably request in connection with a pledge or transfer of the Series D Shares ~~or Warrant~~ and Conversion Shares. (c) Certificates evidencing the Series D Shares and the ~~Warrant~~ Conversion Shares (or the Transfer Agent’s records if held in book entry form) shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such ~~Shares~~ Series D Shares, or ~~Warrant~~ Conversion Shares pursuant to Rule 144, (iii) if such Series D Shares or ~~Warrant~~ Conversion Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Series D Shares or ~~Warrant~~ Conversion Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, ~~if any of the provisions in clause (i) –(iv) above are applicable,~~ at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If ~~all or~~ any ~~portion of a Note is~~ Series D Shares are converted ~~or a Warrant is exercised~~ at a time when there is an effective registration statement to cover the resale of the ~~Shares or the Warrant~~ Conversion Shares, or if such ~~Shares or Warrant~~ Conversion Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the ~~Shares or Warrant~~ Conversion Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such ~~Shares or Warrant~~ Conversion Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such ~~Shares or Warrant~~ Conversion Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than two Trading Days following the delivery by a the Purchaser to the Company or the Transfer Agent of a certificate representing restricted ~~Shares~~ Series D Shares, or ~~Warrant~~ Conversion Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to ~~such~~ the Purchaser a certificate representing such Series D Shares or ~~Warrant~~ Conversion Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for Series D Shares or ~~Warrant~~ Conversion Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by ~~such~~ the Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a the Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that ~~such~~ the Purchaser or anyone associated or affiliated with ~~such~~ the Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of ~~such~~ the Purchaser in the amount of the greater of (ix) 150% of the amount of the aggregate purchase price of the Conversion Shares (based on the amount of ~~principal and/or interest~~ the Stated Value of the ~~Note~~ Series D Shares (as defined in the Series D COD) which was converted~~) and Warrant Shares (based on exercise price in effect upon exercise~~) which is subject to the injunction or temporary restraining order, or (iiy) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to ~~such~~ the Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor. (e) The Company shall (A) pay the reasonable legal fees of the Purchaser’s choice (provided such counsel is reasonably acceptable to the Company) (in an amount not to exceed $500 per legal opinion, and not more often than once per week) in connection with the conversion of the Series D Shares, and (B) cause its attorneys to promptly provide any opinion or reliance opinion to the Transfer Agent. (f) For the avoidance of doubt, the Transaction Documents set forth any and all deliverables that will be required by the Company and the Transfer Agent to effect a conversion of the Series D Shares and the Purchaser shall not be required to deliver any additional documentation or pay any additional fees or costs to the Company or the Transfer Agent to effect such conversion.

Appears in 1 contract

Samples: Securities Purchase Agreement (International Land Alliance Inc.)

Removal of Legends. (a) The ~~Shares,~~ the ~~Warrants~~ Preferred Investment Options and ~~Warrant~~ the Preferred Investment Option Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the ~~Shares, Warrants or Warrant~~ Preferred Investment Options and the Preferred Investment Option Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or Warrant Shares~~ Preferred Investment Options under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares,~~ Preferred Investment Options and the ~~Warrants or Warrant~~ Preferred Investment Option Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or Warrant~~ Preferred Investment Options and the Preferred Investment Option Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares or Warrant~~ Preferred Investment Options and the Preferred Investment Option Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Preferred Investment Options and ~~Warrant~~ the Preferred Investment Option Shares may reasonably request in connection with a pledge or transfer of the ~~Shares or Warrant~~ Preferred Investment Options and the Preferred Investment Option Shares. (c) Certificates evidencing the Preferred Investment Option Shares ~~and the Warrant Shares (or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): ), (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, (ii) following any sale of such ~~Shares or Warrant~~ Preferred Investment Option Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), (iii) if such ~~Shares or Warrant~~ Preferred Investment Option Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a Warrant~~ Preferred Investment Option is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the Warrant~~ Preferred Investment Option Shares, or if such ~~Shares or Warrant~~ Preferred Investment Option Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule ~~144~~144 (assuming cashless exercise of the Warrants), or if the ~~Shares or Warrant~~ Preferred Investment Option Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Preferred Investment Option Shares ~~or Warrant Shares and without volume or manner-of-sale restrictions~~ or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or Warrant~~ Preferred Investment Option Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that ~~following the effective date of any registration statement or~~ at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted~~ Preferred Investment Option Shares ~~or Warrant Shares, as applicable,~~ issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or Warrant~~ Preferred Investment Option Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated~~ a certificate representing Preferred Investment Option Shares issued with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favorrestrictive legend.

Appears in 1 contract

Samples: Securities Purchase Agreement (Polarityte, Inc.)

Removal of Legends. (a) The ~~Shares,~~ Series C Shares and the ~~Warrants and Warrant~~ Conversion Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Series C Shares, ~~Warrants or Warrant~~ and the Conversion Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Series C Shares, ~~Warrants or Warrant~~ and Conversion Shares under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights and obligations of a Purchaser under this Agreement. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Series C Shares, ~~the Warrants or Warrant~~ and Conversion Shares in substantially the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or Warrant~~ Series C Shares, and the Conversion Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares or Warrant~~ Series C Shares, and Conversion Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Series C Shares, and ~~Warrant~~ Conversion Shares may reasonably request in connection with a pledge or transfer of the Series C Shares ~~or Warrant~~ and Conversion Shares. (c) Certificates evidencing the Series C Shares and the ~~Warrant~~ Conversion Shares (or the Transfer Agent’s records if held in book entry form) shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such ~~Shares~~ Series C Shares, or ~~Warrant~~ Conversion Shares pursuant to Rule 144, (iii) if such Series C Shares or ~~Warrant~~ Conversion Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Series C Shares or ~~Warrant~~ Conversion Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, ~~if any of the provisions in clause (i) –(iv) above are applicable,~~ at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If ~~all or~~ any ~~portion of a Note is~~ Series C Share are converted ~~or a Warrant is exercised~~ at a time when there is an effective registration statement to cover the resale of the ~~Shares or the Warrant~~ Conversion Shares, or if such ~~Shares or Warrant~~ Conversion Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the ~~Shares or Warrant~~ Conversion Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such ~~Shares or Warrant~~ Conversion Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such ~~Shares or Warrant~~ Conversion Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted ~~Shares~~ Series C Shares, or ~~Warrant~~ Conversion Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Series C Shares or ~~Warrant~~ Conversion Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for Series C Shares or ~~Warrant~~ Conversion Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent~~. (d)~~ . In addition to ~~such~~ each Purchaser’s other available remedies, ~~(i)~~ the Company shall pay to a each Purchaser, in cash, as partial liquidated damages and not as a penalty, ~~for each $1,000~~ 2% of the ~~principal amount~~ total of ~~the Notes being converted or~~ the value of the ~~Warrant Shares~~ Securities for which ~~a Warrant~~ the removal of the legend is ~~being exercised~~ sought (based on the ~~Warrant Exercise Price), $20 per Trading Day~~ VWAP of the Common Stock on the date such Securities are submitted to the Transfer Agent) for each ~~Trading Day~~ full month that said opinion is not delivered after the Legend Removal Date ~~(increasing to $20 per Trading Day after the fifth Trading Day)~~ until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (ed) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (ix) 150% of the amount of the aggregate purchase price of the Conversion Shares (based on the amount of ~~principal and/or interest~~ the Stated Value of the ~~Note~~ Series C Shares (as defined in the Series C COD) which was converted~~) and Warrant Shares (based on exercise price in effect upon exercise~~) which is subject to the injunction or temporary restraining order, or (iiy) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor. (e) In addition to each Purchaser’s other available remedies, the Company shall pay to each applicable Purchaser, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of Securities (based on the VWAP of the Common Stock on the date such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date until such certificate is delivered without a legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to an applicable Purchaser by the Legend Removal Date a certificate representing the Securities so delivered to the Company by such Purchaser that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that Purchaser anticipated receiving from the Company without any restrictive legend, then, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Securities that the Company was required to deliver to Purchaser by the Legend Removal Date multiplied by (B) the average of the closing sale prices of the Common Stock on any Trading Day during the period commencing on the date of the delivery by Purchaser to the Company of the applicable Securities (as the case may be) and ending on the date of such delivery and payment under this clause (ii). (f) The Company shall (A) pay the reasonable legal fees of the Purchaser’s choice (provided such counsel is reasonably acceptable to the Company) (in an amount not to exceed $500 per legal opinion, and not more often than once per week per Purchaser) in connection with the conversion of the Series C Shares, and (B) cause its attorneys to promptly provide any opinion or reliance opinion to the Transfer Agent. (g) For the avoidance of doubt, the Transaction Documents set forth any and all deliverables that will be required by the Company and the Transfer Agent to effect a conversion of the Series C Shares and shares underlying the Existing Warrants (as defined in the Existing Warrant Amendment Letter), and no Purchaser shall be required to deliver any additional documentation or pay any additional fees or costs to the Company or the Transfer Agent to effect such conversion.

Appears in 1 contract

Samples: Securities Purchase Agreement (International Land Alliance Inc.)

Removal of Legends. (a) The ~~Shares, the Warrants and Warrant Shares~~ Securities may only be disposed of in compliance with U.S. state and U.S. federal securities laws. In connection with any transfer of ~~the Shares, Warrants or Warrant Shares~~ Securities other than (i) pursuant to an effective registration statement or Rule 144, (ii) to the ~~Company or~~ Company, (iii) to an Affiliate of a Purchaser or (iv) in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration ~~of such transferred Shares, Warrants or Warrant Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on ~~any of~~ the ~~Shares, the Warrants or Warrant Shares~~ Securities substantially in the following ~~form: NEITHER~~ form (in addition to any legend required by applicable state securities or “blue sky” laws): [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS ~~EXERCISABLE HAVE~~ EXERCISABLE] [HAS NOT] [HAVE] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. Each certificate representing the Securities, if such securities are being offered to Purchasers in reliance upon Regulation S, shall be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required by applicable state securities or “blue sky” laws): “[NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE] HAS [NOT] BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND NEITHER SUCH SECURITIES [AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY] NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT, AND BASED ON AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT THE PROVISIONS OF REGULATION S HAVE BEEN SATISFIED, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (3) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, IN WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES [OR THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY] MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.” (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or Warrant Shares~~ Securities to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares or Warrant Shares~~ Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares and Warrant Shares~~ Securities may reasonably request in connection with a pledge or transfer of the ~~Shares or Warrant Shares~~Securities. (cd) Certificates or book entry notations evidencing the ~~Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form)~~ Securities shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): ), and the Company shall take such actions as may be necessary to remove any such legend: (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or Warrant Shares~~ Securities pursuant to Rule ~~144,~~ 144 or (iii) if such ~~Shares or Warrant Shares~~ Securities are eligible for sale under Rule ~~144, without the requirement for the Company to be in compliance with the current public information required under Rule~~ 144 ~~as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions~~ or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If ~~all or any portion of a Note is converted or a Warrant is exercised at a time when~~ there is an effective registration statement to cover the resale of the ~~Shares or the Warrant Shares~~Securities, or if such ~~Shares or Warrant Shares~~ Securities may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then the certificates or book entry notations evidencing such ~~Shares or Warrant Shares~~ Securities shall be ~~issued or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or Warrant Shares~~Securities, as applicable, issued with a restrictive legend (such second (2nd) Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. Certificates for ~~Shares or Warrant Shares~~ Securities subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal primary Trading Market with respect to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Ordinary Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing as in effect on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated~~ a certificate representing Securities issued with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favorrestrictive legend.

Appears in 1 contract

Samples: Securities Purchase Agreement (PolyPid Ltd.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (cd) ~~Certificates~~ The Company shall use its commercially reasonable efforts as set forth herein, to remove the restrictive legend from the certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) so that the certificates evidencing the Shares and the Warrant Shares (or book entry form) shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, assuming cashless exercise of the Warrants, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) ), judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any of the provisions in clause (i) –– (iv) above are applicable, at its expense, cause its counsel, or at the option of any Purchaser, counsel determined by such Purchaser to issue a legal opinion to the Transfer Agent ~~promptly after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, subject to compliance with the Securities Act and/or Rule 144. If The Company shall pay all ~~or any portion~~ costs associated with such opinions. For avoidance of doubt, the Company agrees that after a ~~Note~~ two-year holding period (including periods where tacking is ~~converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale~~ permitted by Rule 144) following issuance of ~~the~~ Shares or ~~the~~ Warrant Shares, ~~or if such Shares or Warrant Shares~~ the legend may be ~~sold~~ removed under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements Section 4(a)(1) of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legendsAct. The Company agrees that following the ~~effective date of any registration statement or~~ Effective Date at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(d), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other ~~legends~~legends (or provide evidence of issuance in book entry form). The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to such Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. Certificates for the Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to ~~the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company~~ such system as directed by ~~such~~ each Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (MGT Capital Investments, Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Common Warrants and Common Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Common Warrants or Common Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants~~ Common Warrant or such Common Warrant ~~Shares~~ Share under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Common Warrants or Common Warrant Shares in the following form: ~~NEITHER~~ [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS ~~EXERCISABLE HAVE~~ EXERCISABLE] [HAS NOT] [HAVE] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Common Warrants or Common Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Common Warrants or Common Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Common Warrants and Common Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Common Warrants or Common Warrant Shares. (cd) Certificates (or book entries) evidencing the ~~Shares and the~~ Common Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, (ii) following any sale of such ~~Shares or~~ Common Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Common Warrants), (iii) if such ~~Shares or~~ Common Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Common Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Common Warrant Shares, or if such ~~Shares or~~ Common Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC)~~ Commission), then such ~~Shares or~~ Common Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate (or a request in the case of Common Warrant Shares held in book entry) representing ~~restricted Shares or~~ Common Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate (or a book-entry statement representing such ~~Shares or Warrant Shares~~ shares) that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Common Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent~~As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of a certificate (or a request in the case of Common Warrant Shares held in book entry) representing Common Warrant Shares issued with a restrictive legend. (de) In addition to such Purchaser’s other available remedies, ~~(i)~~ the Company shall pay to a Purchaser, in cash, either (i) as partial liquidated damages and not as a penalty, for each $1,000 of ~~the principal amount of the Notes being converted or the value of the~~ Common Warrant Shares ~~for which a Warrant is being exercised~~ (based on the ~~Warrant Exercise Price~~VWAP of the Common Stock on the date such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date ~~(increasing to $20 per Trading Day after the fifth Trading Day)~~ until such ~~certificate is~~ Common Warrant Shares are delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to a Purchaser by the Legend Removal Date a certificate representing the Securities so delivered to the Company by such Purchaser that is free from all restrictive and other legends or (b) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common ~~Stock~~ Stock, that such Purchaser anticipated receiving from the Company without any restrictive legend, ~~then, the Company shall pay to such Purchaser, in cash,~~ then an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other reasonable and documented out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other reasonable and documented out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of ~~Shares or~~ Common Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable ~~Shares or~~ Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (ef) In The Shares, the ~~event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1~~ Pre-Funded Warrants, and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Pre-Funded Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be ~~payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor~~issued free of legends.

Appears in 1 contract

Samples: Securities Purchase Agreement (Inhibikase Therapeutics, Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Private Common Warrants and the Private Common Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the ~~Shares,~~ Private Common Warrants or and the Private Common Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such ~~transferred Shares,~~ Private Common Warrants or and Private Common Warrant Shares under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares,~~ Private Common Warrants and the ~~Warrants or~~ Private Common Warrant Shares in the following form: ~~NEITHER~~ [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS ~~EXERCISABLE HAVE~~ EXERCISABLE] [HAS NOT] [HAVE] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or~~ Private Common Warrants and the Private Common Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Private Common Warrants or Private Common Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Private Common Warrants and the Private Common Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Private Common Warrants or Private Common Warrant Shares. (cd) Certificates (or book entries) evidencing the ~~Shares~~ Private Common Warrants and the Private Common Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, (ii) following any sale of such ~~Shares~~ Private Common Warrants or Private Common Warrant Shares pursuant to Rule 144, (iii) if such ~~Shares or~~ Private Common Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Private Common Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Private Common Warrant Shares, or if such ~~Shares or~~ Private Common Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC)~~ Commission), then such ~~Shares or~~ Private Common Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(d), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate (or a request in the case of Private Common Warrant Shares held in book entry) representing ~~restricted Shares or~~ Private Common Warrant Shares, as applicable, issued with a restrictive ~~legend (such second Trading Day, the “Legend Removal Date”)~~legend, deliver or cause to be delivered to such Purchaser a certificate (or a book-entry statement representing such ~~Shares or Warrant Shares~~ shares) that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Private Common Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of delivery of a certificate (or a request in the ~~delivery by such Purchaser to the Company~~ case of ~~the applicable Shares or~~ Private Common Warrant Shares ~~(as the case may be~~held in book entry) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of representing Private Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favorissued with a restrictive legend.

Appears in 1 contract

Samples: Securities Purchase Agreement (Vaccinex, Inc.)

Removal of Legends. (a) The ~~Shares~~Warrants, ~~the Warrants~~ Warrant ADSs and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares~~Warrants, ~~Warrants~~ Warrant ADSs or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares~~Warrants, ~~the Warrants~~ Warrant ADSs or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT ~~WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT~~ OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Warrants, Warrant ADSs or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Warrants, Warrant ADSs or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Warrants and Warrant ~~Shares~~ ADSs may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Warrants or Warrant ~~Shares~~ADSs. (cd) Certificates evidencing the ~~Shares~~ Warrant ADSs and ~~the~~ Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities Act (and in the ~~“Effective Date”~~case of affiliates, in connection with a specific contemplated resale), or (ii) following any sale of such Warrant Shares or Warrant ~~Shares~~ ADSs pursuant to Rule 144, or (iii) if such ~~Shares~~ Warrant ADSs or Warrant Shares are eligible for sale without restriction or volume limitations under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the ~~Transfer Agent~~ Depositary promptly ~~after the Effective Date~~ if required by the ~~Transfer Agent~~ Depositary to effect the removal of the legend ~~hereunder~~hereunder subject to receipt of customary certifications from the Purchaser in connection with such opinion. If all or any portion of ~~a Note is converted or~~ a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares~~ Warrant ADSs or ~~the~~ Warrant Shares, or if such ~~Shares or~~ Warrant ~~Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares~~ ADSs or Warrant Shares may be sold under Rule 144 without ~~the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares~~ restriction or ~~Warrant Shares and without~~ volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) limitations then such ~~Shares~~ Warrant ADSs or Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the ~~Transfer Agent~~ Depositary of a certificate representing ~~restricted Shares~~ Warrant ADSs or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ securities that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the ~~Transfer Agent~~ Depositary that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. Certificates for ~~Shares or~~ Warrant ~~Shares~~ ADSs subject to legend removal hereunder shall be transmitted by the ~~Transfer Agent~~ Depositary to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal primary Trading Market with respect to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing ADSs as in effect on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated~~ a certificate representing Warrant ADSs issued with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favorrestrictive legend.

Appears in 1 contract

Samples: Securities Purchase Agreement (Therapix Biosciences Ltd.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (cd) ~~Certificates~~ The Company shall use its commercially reasonable efforts as set forth herein, to remove the restrictive legend from the certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) so that the certificates evidencing the Shares and the Warrant Shares (or book entry form) shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, assuming cashless exercise of the Warrants, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) ), judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any of the provisions in clause (i) –– (iv) above are applicable, at its expense, cause its counsel, or at the option of any Purchaser, counsel determined by such Purchaser to issue a legal opinion to the Transfer Agent ~~promptly after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, subject to compliance with the Securities Act and/or Rule 144. If The Company shall pay all ~~or any portion~~ costs associated with such opinions. For avoidance of doubt, the Company agrees that after a ~~Note~~ two-year holding period (including periods where tacking is ~~converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale~~ permitted by Rule 144) following issuance of ~~the~~ Shares or ~~the~~ Warrant Shares, ~~or if such Shares or Warrant Shares~~ the legend may be ~~sold~~ removed under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements Section 4(a)(1) of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legendsAct. The Company agrees that following the ~~effective date of any registration statement or~~ Effective Date at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(d), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other ~~legends~~legends (or provide evidence of issuance in book entry form). The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to such Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. Certificates for the Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to ~~the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company~~ such system as directed by ~~such~~ each Purchaser~~. The Company shall be responsible for any delays caused by its Transfer Agent~~. (de) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $~~1,000~~ 10,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (ef) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (QHSLab, Inc.)

Removal of Legends. (a) The Preferred Shares, the Conversion Shares, Warrants and the Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Preferred Shares, the Conversion Shares, Warrants or the Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Preferred Shares, the Conversion Shares, Warrants or Warrant Shares under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Preferred Shares, the Conversion Shares, Warrants or the Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS [CONVERTIBLE] EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON [CONVERSION] EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Preferred Shares, the Conversion Shares, Warrants or the Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Preferred Shares, the Conversion Shares, Warrants or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Preferred Shares, the Conversion Shares, Warrants and Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Preferred Shares, the Conversion Shares, Warrants or Warrant Shares. (c) Certificates evidencing the Conversion Shares ~~and~~ or the Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such Conversion Shares or Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), or (iii) if such Conversion Shares or Warrant Shares are eligible for sale under Rule ~~144, without the requirement for the Company to be in compliance with the current public information required under Rule~~ 144 ~~as to such Shares or Warrant Shares and~~ without volume or manner-of-sale ~~restrictions~~ limitations (assuming cashless exercise of the Warrants), or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or a Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of ~~a Note is converted or~~ a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Warrant Shares, or if such ~~Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or~~ Warrant Shares may be sold under Rule 144 without ~~the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without~~ volume or manner-of-sale ~~restrictions~~ limitations (assuming cashless exercise of the Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted~~ the Conversion Shares or Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. Certificates for Conversion Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser~~. The Company shall be responsible for any delays caused by its Transfer Agent~~. (d) In addition to such Purchaser’s other available remedies, ~~(i)~~ the Company shall pay to a Purchaser, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of ~~the principal amount of the Notes being converted~~ Conversion Shares or ~~the value of the~~ Warrant Shares ~~for which a Warrant is being exercised~~ (based on the ~~Warrant Exercise Price~~VWAP of the shares of Common Stock on the date such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date ~~(increasing to $20 per Trading Day after the fifth Trading Day)~~ until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to a Purchaser by the Legend Removal Date a certificate representing the Securities so delivered to the Company by such Purchaser that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common ~~Stock~~ Stock, that such Purchaser anticipated receiving from the Company without any restrictive legend, ~~then, the Company shall pay to such Purchaser, in cash,~~ then an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Conversion Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the shares of Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Conversion Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In The Preferred Shares, the ~~event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1~~ Conversion Shares, the Warrants and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be ~~payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor~~issued free of legends.

Appears in 1 contract

Samples: Securities Purchase Agreement (American Noble Gas, Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Common Warrants and Warrant Shares underlying the Common Warrants may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Common Warrants or Warrant Shares underlying the Common Warrants other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Common Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Common Warrants or Warrant Shares underlying the Common Warrants in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Common Warrants or Warrant Shares underlying the Common Warrants to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Common Warrants or Warrant Shares underlying the Common Warrants to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Common Warrants and Warrant Shares underlying the Common Warrants may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Common Warrants or Warrant ~~Shares~~Shares underlying the Common Warrants. (c) Certificates evidencing the ~~Shares and the~~ Warrant Shares ~~(or~~ underlying the ~~Transfer Agent’s records if held in book entry form)~~ Common Warrants shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), or (iii) if such ~~Shares or~~ Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Common Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Common Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Warrant Shares or underlying the ~~Warrant Shares~~Common Warrants, or if such ~~Shares or~~ Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Common Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Warrant Shares shall be issued ~~or reissued~~ free of all legends, provided that the Company and/or its counsel are provided with any representations or supporting documentation that they may reasonably request. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends, provided that the Company and/or its counsel are provided with any representations or supporting documentation that they may reasonably request. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Cyclacel Pharmaceuticals, Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Series B Warrants and Series B Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Series B Warrants or Series B Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants~~ Series B Warrant or Series B Warrant Shares under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Series B Warrants or Series B Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Series B Warrants or Series B Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Series B Warrants or Series B Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Series B Warrants and Series B Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Series B Warrants or Series B Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Series B Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Series B Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Series B Warrants), or (iii) if such ~~Shares or~~ Series B Warrant Shares ~~are eligible for sale~~ (assuming cashless exercise) may be sold under Rule ~~144,~~ 144 without the requirement for the Company to be in compliance with ~~the current public information required under~~ Rule ~~144 as~~ 144(c)(1) and otherwise without restriction or limitation pursuant to ~~such Shares or Warrant Shares and without volume or manner-of-sale restrictions~~ Rule 144, or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Series B Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Series B Warrant Shares, or if such ~~Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or~~ Series B Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with ~~the current public information required under~~ Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144 ~~as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions~~ or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Series B Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 5.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.later

Appears in 1 contract

Samples: Securities Purchase Agreement (Biocept Inc)

Removal of Legends. (a) The applicable Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a each Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the ~~transferor~~ transferor, provided that the Company shall pay the transferor’s cost thereof, to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. The Company shall instruct its transfer agent to accept the opinion of Nason, Yeager, Gerson, Harris & Fumero, P.A. (or successor firm), subject to compliance with the Securities Act and shall reimburse any Purchaser $750 per opinion within two Trading Days after receipt of each opinion. (ab) Each Purchaser ~~agrees~~ agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, ~~AS AMENDED~~ (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a each Purchaser may from ~~time to~~ time-to-time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, each Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At each Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (c) Certificates evidencing the Shares or Warrant Shares shall not contain any legend (including the legend set forth in Section 4.1(b) hereof): (i) while a registration statement covering the resale of such security is effective under the Securities Act, (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144 (assuming cashless exercise of the Warrants), or (iii) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission). The Company shall, at its expense, cause its counsel, or at the option of any Purchaser, counsel determined by such Purchaser, to issue a legal opinion to the Transfer Agent to effect the removal of the legend hereunder, subject to compliance with the Securities Act and/or Rule 144 For the avoidance of doubt, the Company shall pay all costs associated with such opinions. If all or any portion of a Note is converted or Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or the Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information requirements of Rule 144(c) and without volume or manner of sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) or 4(a)(7), judicial interpretations and pronouncements issued by the staff of the Commission including what is known as Section 4(a)(1½)) then such Shares or Warrant Shares shall be issued free of all legends. For avoidance of doubt, the Company agrees that after a two-year holding period (including periods where tacking permitted by Rule 144) following issuance of Shares or Warrant Shares, the legend may be removed under Section 4(a)(1) of the Securities Act. The Company agrees that at such time as such legend is no longer required under this Section 4.1(c), it will, no later than the earlier of (i) two Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by any Purchaser to the Company or the Transfer Agent of a certificate (or medallion guaranteed stock power if issued in book entry form) representing Shares or Warrant Shares, as applicable, issued without a restrictive legend (such date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such shares that is free from all restrictive and other legends (or provide evidence of issuance in book entry form). The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 4. Certificates for Underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to such Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of a certificate representing Underlying Shares, as applicable, issued with a restrictive legend. Certificates for the Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the transfer agent to such Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of deliver of a certificate representing Shares or Warrant Shares, as applicable, issued with a restrictive legend. The Company acknowledges and agrees that any Purchaser may from time-to-time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At ~~the appropriate~~ such Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares ~~and~~ or Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (c) Certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) shall not contain any legend (including the legend set forth in Section 5.1(a) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”)request, ~~(ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144~~including, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares ~~may be sold~~ have been registered for resale pursuant to a registration statement, the preparation and filing of any required prospectus supplement under Rule ~~144 without~~ 424(b)(3) under the ~~requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares~~ Securities Act or ~~Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under~~ other applicable ~~requirements~~ provision of the Securities Act ~~(including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by~~ to appropriately amend the ~~staff~~ list of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section 5.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 5.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agentselling stockholders thereunder. (d) In addition to ~~such~~ each Purchaser’s other available remedies, (i) the Company shall pay to a such Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the ~~Notes~~ Note being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit ~~such~~ any Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any ~~Securities~~ Shares or Warrant Shares as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date ~~such~~ any Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions mxxx-ups and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions mxxx-ups and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to ~~such~~ the Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a any Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended ~~shares~~shares and such request is not in violation of US securities laws, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, ~~Transfer Agent~~ transfer agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with such Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) ~~150~~15% of the amount of the aggregate purchase price of the Shares ~~(based on amount of principal and/or interest of the Note which was converted)~~ and Warrant Shares ~~(based on exercise price in effect upon exercise)~~ which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent such Purchaser obtains judgment in such Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (American International Holdings Corp.)

Removal of Legends. (a) The ~~Shares, the~~ Common Warrants and Common Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Common Warrants or the Common Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel at the expense of transferor, selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares,~~ Common Warrants ~~or Warrant Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Common Warrants or Common Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Common Warrants or Common Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Common Warrants or Common Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Common Warrants and Common Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Common Warrants or Common Warrant Shares. (c) ~~Certificates~~ Book entry receipts or certificates evidencing the ~~Shares and the~~ Common Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Common Warrant Shares pursuant to Rule 144, or (iii) if such ~~Shares or~~ Common Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Common Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Common Warrant Shares, or if such ~~Shares or~~ Common Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Common Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of: (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted~~ Common Warrant Shares ~~or Warrant Shares, as applicable,~~ issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Common Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent~~As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of a certificate representing Common Warrant Shares issued with a restrictive legend. (d) ~~In addition to~~ Each Purchaser, severally and not jointly with the other Purchasers, agrees with the Company that such ~~Purchaser’s other available remedies,~~ Purchaser will sell any Common Warrant Shares only: (i) pursuant to an effective registration statement which it then available for sales of such Securities and in accordance with the ~~Company shall pay to a Purchaser~~plan of distribution contained therein and in accordance with any applicable prospectus delivery requirements, or an exemption from such delivery requirements, or (ii) in ~~cash, as partial liquidated damages and not as a penalty, for each $1,000~~ compliance with the requirements of Rule 144. Each Purchaser acknowledges that the removal of the ~~principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant~~ restrictive legend from certificates representing Securities as set forth in this Section 4.1 is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for predicated upon the Company’s ~~failure to deliver certificates representing any Securities as required by the Transaction Documents,~~ reliance upon this agreement and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the ~~Company was required~~ Company’s counsel shall be entitled to ~~deliver to such Purchaser by~~ rely on this agreement in providing the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this opinion specified in Section ~~5.1(d~~4.1(c). (e) ~~In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1~~ The Shares, Prefunded Warrants and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Prefunded Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be ~~payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor~~issued free of legends.

Appears in 1 contract

Samples: Securities Purchase Agreement (Clene Inc.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a ~~Purchaser or in connection with a pledge as contemplated in Section 5.1(b)~~Purchaser, the Company may require the ~~transferor~~ transferor, provided that the Company shall pay the transferor’s cost thereof, to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (c) Certificates evidencing the Shares and the Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities ~~Act (the “Effective Date”)~~Act, (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections~~ Section 4(a)(1~~) and 4(a)(7)~~ ), judicial interpretations and pronouncements issued by the staff of the SEC) (the “Effective Date”). The Company shall~~, if any of the provisions in clause (i) –(iv) above are applicable~~, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections~~ Section 4(a)(1~~) and 4(a)(7~~), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than two (2) Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser~~. The Company shall be responsible for any delays caused by its Transfer Agent~~. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth (5th ) Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000 for the first ten (10) Trading Days. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, ~~Transfer Agent~~ transfer agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock,; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) ~~150~~15% of the amount of the aggregate purchase price of the Shares ~~(based on amount of principal and/or interest of the Note which was converted)~~ and Warrant Shares ~~(based on exercise price in effect upon exercise)~~ which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Esports Entertainment Group, Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Common Warrants and Common Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Common Warrants or Common Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants~~ Common Warrant or such Common Warrant ~~Shares~~ Share under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Common Warrants or Common Warrant Shares in the following form: ~~NEITHER~~ [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS ~~EXERCISABLE HAVE~~ EXERCISABLE] [HAS NOT] [HAVE] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Common Warrants or Common Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Common Warrants or Common Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Common Warrants and Common Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Common Warrants or Common Warrant Shares. (cd) Certificates (or book entries) evidencing the ~~Shares and the~~ Common Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, (ii) following any sale of such ~~Shares or~~ Common Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Common Warrants), (iii) if such ~~Shares or~~ Common Warrant Shares are eligible for sale ~~under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and~~ without volume or manner-of-sale ~~restrictions~~ limitations under Rule 144 (assuming cashless exercise of the Warrants), or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Common Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Common Warrant Shares, or if such ~~Shares or~~ Common Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale ~~restrictions~~ limitations under Rule 144 (assuming cashless exercise of the Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC)~~ Commission), then such ~~Shares or~~ Common Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than ~~two~~ the earlier of (i) four (4) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Common Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate (or a book-entry statement representing such ~~Shares or Warrant Shares~~ shares) that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Common Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of delivery of a certificate (or a request in the ~~delivery by such Purchaser to the Company~~ case of ~~the applicable Shares or~~ Common Warrant Shares ~~(as the case may be~~held in book entry) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of representing Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favorissued with a restrictive legend.

Appears in 1 contract

Samples: Securities Purchase Agreement (AgEagle Aerial Systems Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Unregistered Warrants and Unregistered Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Unregistered Warrants or Unregistered Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Unregistered Warrants or Unregistered Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Unregistered Warrants or Unregistered Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Unregistered Warrants or Unregistered Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Unregistered Warrants and Unregistered Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Unregistered Warrants or Unregistered Warrant Shares. (cd) Certificates evidencing the ~~Shares and the~~ Unregistered Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Unregistered Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Unregistered Warrants), or (iii) if such ~~Shares or~~ Unregistered Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Unregistered Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively; provided, however, that all reasonably required documentation relating to Rule 144 representations and warranties are received from the Purchaser. If all or any portion of ~~a Note is converted or a~~ an Unregistered Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Unregistered Warrant Shares, or if such ~~Shares or~~ Unregistered Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Unregistered Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Unregistered Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Unregistered Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Unregistered Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent~~As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of a certificate representing Unregistered Warrant Shares issued with a restrictive legend. (de) In addition to such Purchaser’s other available remedies, ~~(i)~~ the Company shall pay to a Purchaser, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of ~~the principal amount of the Notes being converted or the value of the~~ Unregistered Warrant Shares ~~for which a Warrant is being exercised~~ (based on the ~~Warrant Exercise Price~~VWAP of the Common Stock on the date such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date ~~(increasing to $20 per Trading Day after the fifth Trading Day)~~ until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to a Purchaser by the Legend Removal Date a certificate representing the Securities so delivered to the Company by such Purchaser that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common ~~Stock~~ Stock, that such Purchaser anticipated receiving from the Company without any restrictive legend, ~~then, the Company shall pay to such Purchaser, in cash,~~ then an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of ~~Shares or~~ Unregistered Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable ~~Shares or~~ Unregistered Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Advaxis, Inc.)

Removal of Legends. (a) The Common Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Common Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Common Shares, Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Common Shares, the Warrants or Warrant Shares in substantially the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Common Shares, a Warrant, or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Common Shares, a Warrant, or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Common Shares, a Warrant, and Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Common Shares, a Warrant, or Warrant Shares. (c) Certificates evidencing the Common Shares and the Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Common Shares or Warrant Shares pursuant to Rule 144, (iii) if such Common Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such ~~Shares~~ Common Shares, or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If ~~all or any portion of a Note is converted or~~ a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Warrant Shares, or if such ~~Shares or~~ Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, ~~or if the Shares~~ or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such ~~Shares or~~ Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such ~~Shares or~~ Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company ~~or the Transfer Agent~~ of a certificate representing restricted Common Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Common Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records ~~or give instructions to the Transfer Agent~~ that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for Common Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the ~~Transfer Agent~~ Company to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser~~. The Company shall be responsible for any delays caused by its Transfer Agent~~. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, ~~Transfer Agent fees~~ and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favorCompany.

Appears in 1 contract

Samples: Securities Purchase Agreement (HeartBeam, Inc.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities ~~laws~~Laws. In connection with any transfer of the Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (c) Certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall~~, if any of the provisions in clause (i) –(iv) above are applicable~~, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Adhera Therapeutics, Inc.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities ~~laws~~laws and Canadian Securities Laws. In connection with any transfer of ~~the~~ Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares,~~ Shares or Warrants ~~or Warrant Shares~~ under the Securities ~~Act~~Act or otherwise breach Canadian Securities Laws. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, ~~the~~ Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR CANADIAN SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Shares, Warrants or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Shares, Warrants or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Shares, Warrants and Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Shares, Warrants or Warrant Shares. (cd) Certificates evidencing the Shares and ~~the~~ Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such Shares or Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), or (iii) if such Shares or and Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC)~~Commission) or Canadian Securities Laws. The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of ~~a Note is converted or~~ a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares ~~or the~~ and Warrant Shares, or if such Shares or and Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such Shares or and Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted~~ the Shares or Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for~~ Shares or and Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent~~As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of a certificate representing the Shares or Warrant Shares issued with a restrictive legend. (de) In addition to such Purchaser’s other available remedies, ~~(i)~~ the Company shall pay to a Purchaser, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of ~~the principal amount of the Notes being converted~~ Shares or ~~the value of the~~ Warrant Shares ~~for which a Warrant is being exercised~~ (based on the ~~Warrant Exercise Price~~VWAP of the Common Shares on the date such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date ~~(increasing to $20 per Trading Day after the fifth Trading Day)~~ until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to a Purchaser by the Legend Removal Date a certificate representing the Securities so delivered to the Company by such Purchaser that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) ~~shares of~~ Common ~~Stock~~ Shares to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of ~~shares of~~ Common ~~Stock~~Shares, or a sale of a number of ~~shares of~~ Common ~~Stock~~ Shares equal to all or any portion of the number of ~~shares of~~ Common ~~Stock~~ Shares, that such Purchaser anticipated receiving from the Company without any restrictive legend, ~~then, the Company shall pay to such Purchaser, in cash,~~ then an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the ~~shares of~~ Common ~~Stock~~ Shares so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Neptune Wellness Solutions Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Pre-Funded Warrants ~~and Warrant Shares~~ may only be disposed of in compliance with U.S. state and U.S. federal securities laws. In connection with any transfer of the ~~Shares,~~ Pre-Funded Warrants ~~or Warrant Shares~~ other than (i) pursuant to an effective registration statement or Rule 144, (ii) to the ~~Company or~~ Company, (iii) to an Affiliate of a Purchaser or (iv) in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration ~~of such transferred Shares, Warrants or Warrant Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on ~~any of~~ the ~~Shares, the~~ Pre-Funded Warrants ~~or Warrant Shares~~ substantially in the following ~~form:~~ form (in addition to any legend required by applicable state securities or “blue sky” laws): NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or Warrant Shares~~ Pre-Funded Warrants to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares or Warrant Shares~~ Pre-Funded Warrants to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares and Warrant Shares~~ Pre-Funded Warrants may reasonably request in connection with a pledge or transfer of the ~~Shares or Warrant Shares~~Pre-Funded Warrants. (cd) Certificates evidencing the ~~Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form)~~ Pre-Funded Warrants shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): ), and the Company shall take such actions as may be necessary to remove any such legend: (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or Warrant Shares~~ Pre-Funded Warrants pursuant to Rule ~~144,~~ 144 or (iii) if such ~~Shares or Warrant Shares~~ Pre-Funded Warrants are eligible for sale under Rule ~~144, without the requirement for the Company to be in compliance with the current public information required under Rule~~ 144 ~~as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions~~ or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If ~~all or any portion of a Note is converted or a Warrant is exercised at a time when~~ there is an effective registration statement to cover the resale of the ~~Shares or the Warrant Shares~~Pre-Funded Warrants, or if such ~~Shares or Warrant Shares~~ Pre-Funded Warrants may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then the certificates or book entry notations evidencing such ~~Shares or Warrant Shares~~ Pre-Funded Warrants shall be ~~issued or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), ~~it will~~the Company will , no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or Warrant Shares~~Pre-Funded Warrants, as applicable, issued with a restrictive legend (such second (2nd) Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. Certificates for ~~Shares or Warrant Shares~~ Pre-Funded Warrants subject to legend removal hereunder shall be transmitted by the Transfer Agent to the ~~Purchaser~~ Purchaser, if so eligible, by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated~~ a certificate representing Pre-Funded Warrants issued with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favorrestrictive legend.

Appears in 1 contract

Samples: Securities Purchase Agreement (DarioHealth Corp.)

Removal of Legends. (a) The ~~Shares, the~~ Series A Warrants and Series A Warrant Shares may only be disposed of in compliance with ~~state~~ state, provincial and federal securities laws. In connection with any transfer of ~~the Shares,~~ Series A Warrants or Series A Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Series A Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Series A Warrants or Series A Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE PROVINCIAL AND STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Series A Warrants or Series A Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Series A Warrants or Series A Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Series A Warrants and Series A Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Series A Warrants or Series A Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Series A Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Series A Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Series A Warrants), or (iii) if such ~~Shares or~~ Series A Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Series A Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Series A Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Series A Warrant Shares, or if such ~~Shares or~~ Series A Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Series A Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Series A Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Series A Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Series A Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal primary Trading Market with respect to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Ordinary Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Series A Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (VivoPower International PLC)

Removal of Legends. (a) The ~~Shares, the~~ Common Warrants and Common Warrant Shares may only be disposed of in compliance with state and U.S. federal securities ~~laws~~laws and Canadian Securities Laws. In connection with any transfer of ~~the Shares,~~ Common Warrants or Common Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or Warrant Shares~~ securities under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Common Warrants or the Common Warrant Shares in the following form: ~~NEITHER~~ [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS ~~EXERCISABLE HAVE~~ EXERCISABLE] HAS [NOT] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS ~~SECURITY~~ SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Common Warrants or Common Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Common Warrants or Common Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Common Warrants and Common Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Common Warrants or Common Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Common Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Common Warrant Shares pursuant to Rule ~~144~~144 without volume or manner of sale limitations (assuming cashless exercise of the Common Warrants), or (iii) if such ~~Shares or~~ Common Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Common Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section 5.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 5.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.,

Appears in 1 contract

Samples: Securities Purchase Agreement (Vicinity Motor Corp)

Removal of Legends. (a) The Shares, ~~the~~ Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the~~ Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants~~ Share or Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser~~ Purchasers agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, ~~the~~ Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Shares, Warrants or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, ~~such~~ Purchaser may transfer pledged or secured ~~Shares~~ Shares, Warrants or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At ~~the appropriate~~ Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Shares, Warrants and Warrant Shares Purchaser may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Shares, Warrants or Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), or (iii) if assuming cashless exercise of the Warrants, if such ~~Shares or~~ Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Warrant is exercised or if a Share is converted at a time when there is an effective registration statement to cover the resale of the Warrant Shares ~~or the Warrant Shares,~~ or if such ~~Shares or~~ Warrant Shares may be sold under Rule ~~144 and the Company is then in compliance with the current public information required under Rule~~ 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than ~~two~~ the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted~~ Warrant Shares ~~or Warrant Shares, as applicable,~~ issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to ~~such~~ Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other ~~legends.~~ legends , so long as, no later than the applicable date in clause (i) or (ii), Purchaser and Purchaser’s broker have provided to the Company or the Company’s transfer agent all customary documents and have taken all customary actions requested by the Company’s transfer agent in connection with the foregoing delivery.. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to ~~the~~ Purchaser by crediting the account of ~~the~~ Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by ~~such~~ Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Sigma Labs, Inc.)

Removal of Legends. (a) The ~~Shares, the Warrants and Warrant Shares~~ Restricted Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares, Warrants or Warrant Shares~~ Restricted Securities other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(a), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Common Warrant ~~Shares~~ under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights and obligations of a Purchaser under this Agreement. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the Warrants or Warrant Shares~~ Restricted Securities in the following form: ~~NEITHER~~ [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS ~~EXERCISABLE HAVE~~ EXERCISABLE] HAS [NOT] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS ~~SECURITY~~ SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or Warrant Shares~~ Restricted Securities to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares or Warrant Shares~~ Restricted Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares and Warrant Shares~~ Restricted Securities may reasonably request in connection with a pledge or transfer of the ~~Shares or Warrant Shares~~Restricted Securities. (c) Certificates evidencing the ~~Shares and the~~ Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain ~~any legend (including~~ the legend set forth in Section ~~5.1(a~~4.1(b) ~~hereof):~~ hereof (i) ~~while~~ following a sale under an effective registration statement covering the resale of such ~~securities is effective under the Securities Act (the “Effective Date”)~~security, (ii) following any sale of such ~~Shares or~~ Warrant Shares pursuant to Rule 144, ~~(iii)~~ if such ~~Shares or~~ Warrant Shares are eligible for sale under Rule 144, ~~without~~ or (iii) if the ~~requirement~~ Warrant Shares are eligible for ~~the Company to be in compliance with the current public information required~~ sale under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the ~~staff~~ holder thereof without reference to volume, manner of ~~the SEC)~~sale or public information requirements. The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent ~~promptly after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a ~~Note is converted or a~~ Warrant is exercised at a time when ~~there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if~~ such ~~Shares or~~ Warrant Shares may be sold under Rule 144 ~~and~~ by the ~~Company is then in compliance with the current~~ holder thereof without reference to volume, manner of sale or public information ~~required under Rule 144~~requirements, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such ~~Shares or~~ Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that ~~following the effective date~~ upon notice of ~~any registration statement or~~ sale of Warrant Shares at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than the earlier of (i) two Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (U.S. Gold Corp.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (cd) ~~Certificates~~ The Company shall use its commercially reasonable efforts as set forth herein, to remove the restrictive legend from the certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) so that the certificates evidencing the Shares and the Warrant Shares (or book entry form) shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, assuming cashless exercise of the Warrants, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) ), judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any of the provisions in clause (i) –– (iv) above are applicable, at its expense, cause its counsel, or at the option of any Purchaser, counsel determined by such Purchaser to issue a legal opinion to the Transfer Agent ~~promptly after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, subject to compliance with the Securities Act and/or Rule 144. If The Company shall pay all ~~or any portion~~ costs associated with such opinions. For avoidance of doubt, the Company agrees that after a ~~Note~~ two-year holding period (including periods where tacking is ~~converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale~~ permitted by Rule 144) following issuance of ~~the~~ Shares or ~~the~~ Warrant Shares, ~~or if such Shares or Warrant Shares~~ the legend may be ~~sold~~ removed under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements Section 4(a)(1) of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legendsAct. The Company agrees that following the ~~effective date of any registration statement~~ Effective Date or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(d), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other ~~legends~~legends (or provide evidence of issuance in book entry form). The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to such Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. Certificates for the Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to ~~the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company~~ such system as directed by ~~such~~ each Purchaser~~. The Company shall be responsible for any delays caused by its Transfer Agent~~. (de) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $~~1,000~~ 10,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (ef) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Usa Equities Corp.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the ~~transferor~~ transferor, provided that the Company shall pay the transferor's cost thereof, to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “"SECURITIES ACT”"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “"ACCREDITED INVESTOR” " AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “"accredited investor” " as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s 's expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (c) Certificates evidencing the Shares and the Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities ~~Act (the “Effective Date”)~~Act, (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections~~ Section 4(a)(1~~) and 4(a)(7)~~ ), judicial interpretations and pronouncements issued by the staff of the SEC) (the "Effective Date"). The Company shall~~, if any of the provisions in clause (i) –(iv) above are applicable~~, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections~~ Section 4(a)(1~~) and 4(a)(7~~), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than two (2) Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “"Legend Removal Date”"), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s 's prime broker with the Depository Trust Company system as directed by such Purchaser~~. The Company shall be responsible for any delays caused by its Transfer Agent~~. (d) In addition to such Purchaser’s 's other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth (5th ) Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000 for the first ten (10) Trading Days. Nothing herein shall limit such Purchaser’s 's right to pursue actual damages for the Company’s 's failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s 's total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “"Buy-In Price”") over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, ~~Transfer Agent~~ transfer agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock,; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s 's obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) ~~150~~15% of the amount of the aggregate purchase price of the Shares ~~(based on amount of principal and/or interest of the Note which was converted)~~ and Warrant Shares ~~(based on exercise price in effect upon exercise)~~ which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s 's favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Esports Entertainment Group, Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Purchase Warrants and Purchase Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Purchase Warrants or Purchase Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Purchase Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Purchase Warrants or Purchase Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Purchase Warrants or Purchase Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Purchase Warrants or Purchase Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Purchase Warrants and Purchase Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Purchase Warrants or Purchase Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Purchase Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Purchase Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Purchase Warrants), or (iii) if such ~~Shares or~~ Purchase Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Purchase Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Purchase Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Purchase Warrant Shares, or if such ~~Shares or~~ Purchase Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Purchase Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Purchase Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Purchase Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Purchase Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal primary Trading Market with respect to the ~~excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of~~ Common ~~Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of~~ Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Purchase Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Siyata Mobile Inc.)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Shares, the Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares,~~ Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, ~~the~~ Warrants or Warrant Shares in the following form: “[NEITHER ]THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY ]MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.” (bc) The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Shares, Warrants or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities ~~Act~~ Act, and ~~who agrees to be bound by the provisions of this Agreement and,~~ if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Shares, Warrants or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Shares, Warrants and Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Shares, Warrants or Warrant Shares. (cd) Certificates evidencing the Shares ~~and the~~ or Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such Shares or Warrant Shares pursuant to Rule ~~144~~144 (assuming, in the case of the Warrant Shares, cashless exercise of the Warrants), or (iii) if such Shares or Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming, ~~without~~ in the ~~requirement for~~ case of the ~~Company to be in compliance with~~ Warrant Shares, cashless exercise of the ~~current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions~~ Warrants), or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or a Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser. If all or any portion of ~~a Note is converted or~~ a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 ~~and~~ (assuming, in the ~~Company is then in compliance with~~ case of the ~~current public information required under Rule 144~~Warrant Shares, ~~or if~~ cashless exercise of the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(d), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted~~ Shares or Warrant ~~Shares, as applicable,~~ Shares and such representations and warranties relating to the “Affiliate” status of such Purchaser and the holding period of the Shares or Warrants issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for~~ Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the applicable Purchaser by crediting the account of ~~the~~ such Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent~~As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of a certificate representing Shares or Warrant Shares issued with a restrictive legend. (de) In addition to ~~such Purchaser’s~~ Acutias’ other available remedies, ~~(i)~~ the Company shall pay to ~~a Purchaser~~Acuitas, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of ~~the principal amount of the Notes being converted~~ Shares or ~~the value of the~~ Warrant Shares ~~for which a Warrant is being exercised~~ (based on the ~~Warrant Exercise Price~~volume weighted average price or VWAP of the Common Stock on the date such securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(d), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date ~~(increasing to $20 per Trading Day after the fifth Trading Day)~~ until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to Acuitas by the Legend Removal Date a certificate representing the securities so delivered to the Company by Acuitas that is free from all restrictive and other legends and (b) if after the Legend Removal Date ~~such Purchaser~~ Acuitas purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by ~~such Purchaser~~ Acuitas of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common ~~Stock~~ Stock, that ~~such Purchaser~~ Acuitas anticipated receiving from the Company without any restrictive legend, ~~then, the Company shall pay to such Purchaser, in cash,~~ then an amount equal to the excess of ~~such Purchaser’s~~ Acuitas’ total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to ~~such Purchaser~~ Acuitas by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by ~~such Purchaser~~ Acuitas to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(e). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Biovie Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Restricted Warrants and Restricted Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Restricted Warrants or Restricted Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Restricted Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Restricted Warrants or Restricted Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Restricted Warrants or Restricted Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Restricted Warrants or Restricted Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Restricted Warrants and Restricted Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Restricted Warrants or Restricted Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Restricted Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Restricted Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Restricted Warrants), or (iii) if such ~~Shares or~~ Restricted Warrant Shares are eligible for sale under Rule ~~144~~144 without restriction (assuming cashless exercise of the Restricted Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Restricted Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Restricted Warrant Shares, or if such ~~Shares or~~ Restricted Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section 5.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 5.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.under

Appears in 1 contract

Samples: Securities Purchase Agreement (Emagin Corp)

Removal of Legends. (a) The ~~Shares, the~~ Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants~~ Warrant or Warrant Shares under the Securities Act. As a condition to such transfer, any such transferee shall agree, in writing, to be bound by the terms of this Agreement. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of ~~the Shares,~~ the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Warrants or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Warrants or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Warrants and Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Warrants or Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), or (iii) if such ~~Shares or~~ Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. Upon request by the Company or its counsel with a form of letter, the Purchaser shall deliver a customary representation letter to counsel of the Company in connection with an opinion related to Rule 144 hereunder. If all or any portion of ~~a Note is converted or~~ a Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of ~~the Shares or~~ the Warrant Shares, or if such ~~Shares or~~ Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Innovate Biopharmaceuticals, Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Ordinary Share Warrants and Ordinary Share Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Ordinary Share Warrants or and Ordinary Share Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Ordinary Share Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Ordinary Share Warrants or and Ordinary Share Warrant Shares in substantially the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or~~ Ordinary Share Warrants and Ordinary Share Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares or~~ Ordinary Share Warrants and Ordinary Share Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Ordinary Share Warrants and Ordinary Share Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares or~~ Ordinary Share Warrants and Ordinary Share Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Ordinary Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Ordinary Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), or (iii) if such ~~Shares or~~ Ordinary Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Ordinary Share Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of ~~a Note is converted or a~~ an Ordinary Share Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Ordinary Warrant Shares, or if such ~~Shares or~~ Ordinary Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Ordinary Share Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Ordinary Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Ordinary Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Ordinary Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal primary Trading Market with respect to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing ADSs as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Ordinary Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Mobilicom LTD)

Removal of Legends. (a) The Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act. (ab) Each Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares. (c) Certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) ), and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall~~, if any of the provisions in clause (i) –(iv) above are applicable~~, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section ~~5.1~~ 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Quad M Solutions, Inc.)

Removal of Legends. (a) The Shares, ~~the~~ Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the~~ Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the Shares, ~~the~~ Warrants or Warrant Shares substantially in the following form: : (c) NEITHER THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS ~~EXERCISABLE~~ EXERCISABLE] HAVE BEEN REGISTERED ~~WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION~~ UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROMAMENDED, OR ~~IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH~~ APPLICABLE STATE SECURITIES LAWS. THIS SECURITY [AND THE SECURITIES ~~ISSUABLE UPON EXERCISE OF~~ INTO WHICH THIS SECURITY IS EXERCISABLE] HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE ~~PLEDGED~~ OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN ~~CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS~~ THE ABSENCE OF AN ~~“ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)~~ EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ~~OTHER LOAN SECURED BY SUCH SECURITIES. (b)~~ APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A FORM ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Shares, Warrants or Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Shares, Warrants or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company ~~will~~ shall execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Shares, Warrants and Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Shares, Warrants or Warrant Shares. (c) Certificates evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) shall not contain any legend (including the legend set forth in Section 5.1(a) hereof): (i) while a registration statement covering the resale of such securities is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration statement or at such time as such legend is no longer required under this Section 5.1(c), it will, no later than two Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 5.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (INFOSONICS Corp)

Removal of Legends. (a) The ~~Shares, the~~ Unregistered Warrants and corresponding underlying Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Unregistered Warrants or corresponding Underlying Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Unregistered Warrants or corresponding Underlying Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Unregistered Warrants or corresponding Underlying Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Unregistered Warrants or corresponding Underlying Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Warrants and Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Unregistered Warrants or corresponding Underlying Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Warrant Shares ~~(or~~ underlying the ~~Transfer Agent’s records if held in book entry form)~~ Unregistered Warrants shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of such Warrants), or (iii) if such ~~Shares or~~ Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of such Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of ~~a Note is converted or a~~ an Unregistered Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Warrant Shares ~~or the Warrant Shares~~underlying such Warrant, or if such ~~Shares or~~ Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to (assuming cashless exercise of such ~~Shares or Warrant Shares and without volume or manner-of-sale restrictions~~ Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Palisade Bio, Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Unregistered Warrants and Unregistered Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Unregistered Warrants or Unregistered Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Unregistered Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Unregistered Warrants or Unregistered Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Unregistered Warrants or Unregistered Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Unregistered Warrants or Unregistered Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Unregistered Warrants and Unregistered Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Unregistered Warrants or Unregistered Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Unregistered Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Unregistered Warrant Shares pursuant to Rule ~~144~~144 (including assuming cashless exercise of the Unregistered Warrants), or (iii) if such ~~Shares or~~ Unregistered Warrant Shares are eligible for sale under Rule ~~144~~144 (including assuming cashless exercise of the Unregistered Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly ~~after the Effective Date~~ if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of a ~~Note is converted or a~~ Unregistered Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Unregistered Warrant Shares, or if such ~~Shares or~~ Unregistered Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Unregistered Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Unregistered Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Unregistered Warrant Shares, as applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. Certificates for ~~Shares or~~ Unregistered Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d) In addition to such Purchaser’s other available remedies~~As used herein, ~~(i)~~ “Standard Settlement Period” means the ~~Company shall pay to~~ standard settlement period, expressed in a ~~Purchaser~~number of Trading Days, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s ~~failure~~ primary Trading Market with respect to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock ~~on any Trading Day during the period commencing~~ as in effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Unregistered Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

Appears in 1 contract

Samples: Securities Purchase Agreement (Genius Brands International, Inc.)

Removal of Legends. a) The ~~Shares, the~~ Ordinary Share Warrants and Ordinary Share Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Ordinary Share Warrants or and Ordinary Share Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Ordinary Share Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Ordinary Share Warrants or and Ordinary Share Warrant Shares in substantially the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or~~ Ordinary Share Warrants and Ordinary Share Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares or~~ Ordinary Share Warrants and Ordinary Share Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Ordinary Share Warrants and Ordinary Share Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares or~~ Ordinary Share Warrants and Ordinary Share Warrant Shares. In the event of any transfer of Ordinary Share Warrants and/or Ordinary Share Warrant Shares by a Purchaser to a pledgee or secured party, including as a result of foreclosure by such pledgee or secured party, the Ordinary Share Warrants and Ordinary Share Warrant Shares held such pledgee or secured party will continue to be subject to the same limitations on transfer as would have been applicable to such Purchaser had such transfer not occurred. (c) Certificates evidencing the ~~Shares and the~~ Ordinary Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Ordinary Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), or (iii) if such ~~Shares or~~ Ordinary Warrant Shares are eligible for sale under Rule ~~144~~144 without limitation (assuming cashless exercise of the Ordinary Share Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the ~~Transfer Agent~~ Depositary or a Purchaser promptly ~~after the Effective Date~~ if required by the ~~Transfer Agent~~ Depositary to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of ~~a Note is converted or a~~ an Ordinary Share Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Ordinary Warrant Shares, or if such ~~Shares or~~ Ordinary Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Ordinary Share Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Ordinary Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the ~~Transfer Agent~~ Depositary of a certificate representing ~~restricted Shares or~~ Ordinary Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the ~~Transfer Agent~~ Depositary that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Ordinary Warrant Shares subject to legend removal hereunder shall be transmitted by the ~~Transfer Agent~~ Depositary to the applicable Purchaser by crediting the account of ~~the~~ such Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent~~As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the ADSs as in effect on the date of delivery of a certificate representing Ordinary Warrant Shares issued with a restrictive legend. (d) In addition to such Purchaser’s other available remedies, ~~(i)~~ the Company shall pay to a Purchaser, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of ~~the principal amount of the Notes being converted or the value of the~~ Ordinary Warrant Shares ~~for which a Warrant is being exercised~~ (based on the ~~Warrant Exercise Price~~VWAP of the ADS on the date such Securities are submitted to the Depositary) delivered for removal of the restrictive legend and subject to Section 4.1(c), $20 10 per Trading Day ~~for each Trading Day after the Legend Removal Date~~ (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the ~~fifth~~ second Trading ~~Day)~~ Day following the Legend Removal Date until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to a Purchaser by the Legend Removal Date a certificate representing the Securities so delivered to the Company by such Purchaser that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) ~~shares of Common Stock~~ ADSs or Ordinary Shares to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of ~~shares of Common Stock,~~ ADSs or ~~a sale of a number of shares of Common Stock~~ Ordinary Shares equal to all or any portion of the number of ~~shares of Common Stock~~ ADSs or Ordinary Shares, that such Purchaser anticipated receiving from the Company without any restrictive legend, ~~then, the Company shall pay to such Purchaser, in cash,~~ then an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the ~~shares of Common Stock~~ ADSs or Ordinary Shares so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of ~~Shares or~~ Ordinary Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the ~~Common Stock~~ ADSs or Ordinary Shares on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable ~~Shares or~~ Ordinary Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which The ADSs shall be ~~payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor~~issued free of legends.

Appears in 1 contract

Samples: Securities Purchase Agreement (Scinai Immunotherapeutics Ltd.)

Removal of Legends. (a) The ~~Shares, the~~ Ordinary Share Warrants and Ordinary Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Ordinary Share Warrants or Ordinary Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(d), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Ordinary Share Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each~~ The Purchaser agrees to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Ordinary Share Warrants or Ordinary Warrant Shares in the following form: : (c) NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES. (bd) The Company acknowledges and agrees that a the Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares~~ Ordinary Share Warrants or Ordinary Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares~~ Ordinary Share Warrants or Ordinary Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the ~~appropriate~~ Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Ordinary Share Warrants and Ordinary Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Ordinary Share Warrants or Ordinary Warrant Shares. (ce) Certificates evidencing the ~~Shares and the~~ Ordinary Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(c) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Ordinary Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Ordinary Share Warrants), or (iii) if such ~~Shares or~~ Ordinary Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Ordinary Share Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the ~~Transfer Agent~~ Depositary or the Purchaser promptly ~~after the Effective Date~~ if required by the ~~Transfer Agent~~ Depositary to effect the removal of the legend hereunder, or if requested by the Purchaser, respectively. If all or any portion of ~~a Note is converted or a~~ an Ordinary Share Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Ordinary Warrant Shares, or if such ~~Shares or~~ Ordinary Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Ordinary Share Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Ordinary Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(e), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the ~~Transfer Agent~~ Depositary of a certificate representing ~~restricted Shares or~~ Ordinary Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the ~~Transfer Agent~~ Depositary that enlarge the restrictions on ~~transfer~~ delivery set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Ordinary Warrant Shares subject to legend removal hereunder shall be transmitted by the ~~Transfer Agent~~ Depositary to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent. (d)~~ As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Ordinary Warrant Shares as in effect on the date of delivery of a certificate representing Ordinary Warrant Shares issued with a restrictive legend. In addition to ~~such Purchaser’s other available remedies,~~ (iand not in limitation of) the ~~Company shall pay to a Purchaser~~foregoing, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if ~~after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of~~ all or any portion of an Ordinary Share Warrant is exercised via cashless exercise more than one year after the ~~number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion~~ purchase of the ~~number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then~~Ordinary Share Warrants, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares ~~that the Company was required~~ issued pursuant to ~~deliver to~~ any such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 5.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be ~~payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor~~issued free of all legends.

Appears in 1 contract

Samples: Securities Purchase Agreement (RedHill Biopharma Ltd.)

Removal of Legends. a) The ~~Shares, the~~ Ordinary Share Warrants and Ordinary Share Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~the Shares,~~ Ordinary Share Warrants or and Ordinary Share Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section ~~5.1(b~~4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to ~~the Company at the cost of~~ the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred ~~Shares, Warrants or~~ Ordinary Share Warrant ~~Shares~~ under the Securities Act. (ab) ~~Each Purchaser agrees~~ The Purchasers agree to the imprinting, so long as is required by this Section ~~5.1~~4.1, of a legend on any of the ~~Shares, the~~ Ordinary Share Warrants or and Ordinary Share Warrant Shares in substantially the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES~~. (b)~~ . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the ~~Shares or~~ Ordinary Share Warrants and Ordinary Share Warrant Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act ~~and who agrees to be bound by the provisions of this Agreement~~ and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured ~~Shares or~~ Ordinary Share Warrants and Ordinary Share Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ Ordinary Share Warrants and Ordinary Share Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares or~~ Ordinary Share Warrants and Ordinary Share Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Ordinary Warrant Shares ~~(or the Transfer Agent’s records if held in book entry form)~~ shall not contain any legend (including the legend set forth in Section ~~5.1(a~~4.1(b) hereof): (i) while a registration statement covering the resale of such ~~securities~~ security is effective under the Securities ~~Act (the “Effective Date”)~~Act, or (ii) following any sale of such ~~Shares or~~ Ordinary Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), or (iii) if such ~~Shares or~~ Ordinary Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Ordinary Share Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7)~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission). The Company ~~shall, if any of the provisions in clause (i) –(iv) above are applicable, at its expense,~~ shall cause its counsel to issue a legal opinion to the ~~Transfer Agent~~ Depositary or a Purchaser promptly ~~after the Effective Date~~ if required by the ~~Transfer Agent~~ Depositary to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion of ~~a Note is converted or a~~ an Ordinary Share Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Ordinary Warrant Shares, or if such ~~Shares or~~ Ordinary Warrant Shares may be sold under Rule 144 ~~and~~ (assuming cashless exercise of the Company is then in compliance with the current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or manner-of-sale restrictions Ordinary Share Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Sections 4(a)(1) and 4(a)(7),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Ordinary Warrant Shares shall be issued ~~or reissued~~ free of all legends. The Company agrees that following ~~the effective date of any registration statement or at~~ such time as such legend is no longer required under this Section ~~5.1(c~~4.1(c), it the Company will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the ~~Transfer Agent~~ Depositary of a certificate representing ~~restricted Shares or~~ Ordinary Warrant Shares, as applicable, issued with a restrictive legend (such ~~second Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such ~~Shares or Warrant Shares~~ shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the ~~Transfer Agent~~ Depositary that enlarge the restrictions on transfer set forth in this Section ~~5.1~~4. ~~Certificates for Shares or~~ Ordinary Warrant Shares subject to legend removal hereunder shall be transmitted by the ~~Transfer Agent~~ Depositary to the applicable Purchaser by crediting the account of ~~the~~ such Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. ~~The Company shall be responsible for any delays caused by its Transfer Agent~~As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the ADSs as in effect on the date of delivery of a certificate representing Ordinary Warrant Shares issued with a restrictive legend. (d) In addition to such Purchaser’s other available remedies, ~~(i)~~ the Company shall pay to a Purchaser, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of ~~the principal amount of the Notes being converted or the value of the~~ Ordinary Warrant Shares ~~for which a Warrant is being exercised~~ (based on the ~~Warrant Exercise Price~~VWAP of the ADS on the date such Securities are submitted to the Depositary) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date ~~(increasing to $20 per Trading Day after the fifth Trading Day)~~ until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to a Purchaser by the Legend Removal Date a certificate representing the Securities so delivered to the Company by such Purchaser that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) ~~shares of Common Stock~~ ADSs or Ordinary Shares to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of ~~shares of Common Stock~~ADSs or Ordinary Shares, or a sale of a number of ~~shares of Common Stock~~ ADSs or Ordinary Shares equal to all or any portion of the number of ~~shares of Common Stock~~ ADSs or Ordinary Shares, that such Purchaser anticipated receiving from the Company without any restrictive legend, ~~then, the Company shall pay to such Purchaser, in cash,~~ then an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-~~of-~~ of-pocket expenses, if any) for the ~~shares of Common Stock~~ ADSs or Ordinary Shares so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of ~~Shares or~~ Ordinary Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the ~~highest~~ lowest closing sale price of the ~~Common Stock~~ ADSs or Ordinary Shares on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable ~~Shares or~~ Ordinary Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section ~~5.1(d~~4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of the litigation of the dispute and the proceeds of which The ADSs shall be ~~payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor~~issued free of legends.

Appears in 1 contract

Samples: Securities Purchase Agreement (Purple Biotech Ltd.)

Common use of Removal of Legends Clause in Contracts