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 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 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, 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 Restricted Warrant under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 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. 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 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, (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 Section 4(a)(1), judicial interpretations and pronouncements issued by the staff of the SEC) (the “Effective Date”). The Company shall, 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 Section 4(a)(1), 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 4.1(c), it will, no later than 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 third 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 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. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 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 4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 4 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~~ Common Warrants, Pre-Funded Warrants, Common Warrant Shares and Pre-Funded Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~Warrants or Warrant Shares~~ any such 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 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, 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 ~~Restricted Warrant~~ Securities under the Securities Act. (b) The Purchasers ~~agree~~ agrees to the imprinting, so long as is required by this Section 4.1, of a legend on ~~any~~ each of the Shares, ~~the Warrants or~~ Common Warrants, Pre-Funded Warrants, Common Warrant Shares and Pre-Funded Warrant Shares in substantially 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~~ 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. . (c) 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~~ any of the 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~~ any of the Securities may reasonably request in connection with a pledge or transfer of such Securities, including, if the ~~Shares~~ 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 Shareholders (as defined in the Registration Rights Agreement) thereunder. (cd) Certificates evidencing the Shares and ~~the~~ 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, 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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, 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 ~~Section 4(a)(1),~~ 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 4.1(c), it the Company will, no later than ~~three~~ 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 ~~third 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 ~~4.1~~4. ~~Certificates for~~ Shares or and Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to ~~the~~ each 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~~. (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, in cash, as partial liquidated damages and not as a penalty, for each $1,000~~ number of per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten Trading Days~~. Nothing herein shall limit such Purchaser’s right to pursue actual damages for~~ , on 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 lowest 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 Shares or Warrant ~~Shares (~~Shares, as the case may be~~) and ending on the date of such delivery and payment under this Section 4.1(d)~~, issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 4 contracts

Samples: Securities Purchase Agreement (G Medical Innovations Holdings Ltd.), Securities Purchase Agreement (G Medical Innovations Holdings Ltd.), Securities Purchase Agreement (G Medical Innovations Holdings Ltd.)

Removal of Legends. (a) The ~~Shares, the Warrants and Warrant Shares~~ Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~Warrants or Warrant Shares~~ Securities other than pursuant to an effective registration statement with a current prospectus, or ~~Rule 144,~~ to the ~~Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 4.1(b)~~Company, the Company ~~at its sole cost~~ may require the transferor thereof to provide to the Company an opinion of counsel at the expense of the transferor, selected by the transferor and reasonably acceptable to 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 ~~Restricted Warrant~~ Securities under the Securities Act. (b) ~~The Purchasers agree to the imprinting~~Each Purchaser agrees, so long as is required by this Section 4.1, of book entry notations evidencing the Shares shall bear a ~~legend on any of the Shares~~restrictive legend, ~~the Warrants or Warrant Shares~~ substantially in the following form: ~~NEITHER THIS SECURITY NOR~~ THE SECURITIES ~~INTO WHICH THIS SECURITY IS EXERCISABLE~~ REPRESENTED HEREBY HAVE 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 U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “~~SECURITIES~~ ACT”~~), AND, ACCORDINGLY,~~ ) AND ARE “RESTRICTED SECURITIES” AS DEFINED IN RULE 144 PROMULGATED UNDER THE ACT. THE SECURITIES MAY NOT BE ~~OFFERED~~ OFFERED, SOLD, PLEDGED, OR ~~SOLD EXCEPT~~ OTHERWISE DISTRIBUTED OR TRANSFERRED EXCEPT: (i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ~~SECURITIES~~ ACT OR (ii) PURSUANT TO AN ~~AVAILABLE~~ EXEMPTION ~~FROM~~FROM REGISTRATION UNDER THE ACT, OR AND, IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS THE COMPANY AND DEPOSITARY HAVE RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO EACH OF THEM THAT SUCH TRANSACTION DOES NOT ~~SUBJECT TO, THE~~ REQUIRE 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. 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 SharesACT. (c) ~~Certificates~~ The book entry ledger of the Transfer Agent evidencing the ~~Shares and the Warrant Shares~~ Securities shall not contain any legend (including the legend set forth in Section 4.1(b) hereof): (i) while a registration statement with a current prospectus covering the resale of such security is effective under the Securities Act, (ii) following any sale of such ~~Shares or Warrant Shares~~ Securities pursuant to Rule 144, (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~~ Securities and without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) (~~the~~ “Effective Date”). The Company ~~shall, 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~~ Securities may be sold under Rule 144 without limitation or restriction and the Company is then in compliance with the current public information required under Rule 144, or if the ~~Shares or Warrant Shares~~ Securities 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~~ Securities or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then 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~~ Effective Date and at such time as such legend is no longer required under this Section 4.1(c), it will, no later than ~~three~~ 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~~ Securities or ~~Warrant Shares, as applicable~~book entry position representing the Securities, issued with a restrictive legend (such ~~third Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate or book entry position 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 that enlarge the restrictions on transfer set forth in this Section ~~4.1~~4. Certificates for ~~Shares or Warrant Shares~~ Securities subject to legend removal hereunder shall be transmitted by the Transfer Agent to ~~the~~ such Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser~~. (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, in cash, as partial liquidated damages and not as a penalty, for each $1,000~~ number of per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten Trading Days~~. 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~~ the 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 lowest closing sale price of the Common Stock on any Trading Day during the period commencing 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 4.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended shares as described in this Section 4.1 and~~ a certificate representing 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 favorSecurities.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Clene Inc.), Securities Purchase Agreement (Clene Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Private Placement Warrants and the Private Placement Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Private Placement Warrants or and Private Placement Warrant ~~Shares~~ 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 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, 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 ~~Restricted~~ Private Placement Warrants and Private Placement Warrant Shares under the Securities Act. (b) The ~~Purchasers agree~~ Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Private Placement Warrants and Private Placement Warrant Shares, ~~the Warrants or Warrant Shares~~ substantially in the following form: 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. . (c) 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~~ Private Placement Warrants or Private Placement 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~~ the Private Placement Warrants and Private Placement Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Private Placement Warrants or Private Placement Warrant Shares. (cd) Certificates evidencing the ~~Shares and the~~ Private Placement 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~~ Private Placement Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the the Private Placement Warrants), (iii) if such ~~Shares or~~ Private Placement Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Private Placement 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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 is converted or a~~ Private Placement Warrant is exercised at a time when there is an effective registration statement to cover the resale of the ~~Shares or the~~ Private Placement Warrant Shares, or if such ~~Shares or~~ Private Placement 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC)~~ Commission), then such ~~Shares or~~ Private Placement 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 ~~4.1(c~~4.1(d), it the Company will, no later than ~~three~~ 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~~ Private Placement Warrant Shares ~~or Warrant Shares, as applicable,~~ issued with a restrictive legend (such ~~third 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 ~~4.1~~4. ~~Certificates for Shares or~~ Private Placement 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~~ the Purchaser~~. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based~~ on the ~~VWAP of~~ Company’s primary Trading Market with respect to the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 lowest closing sale price of the Common Stock on any Trading Day during the period commencing effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable Shares or~~ a certificate representing Private Placement Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 4.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (Checkpoint Therapeutics, Inc.), Securities Purchase Agreement (Checkpoint Therapeutics, Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Unregistered Warrants and the Unregistered Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Unregistered Warrants or the 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 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, 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 ~~Restricted~~ Unregistered Warrants or Unregistered Warrant Shares under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the ~~Shares, the~~ Unregistered Warrants or the 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. 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 the 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 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, 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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~~ Unregistered 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 ~~Section 4(a)(1),~~ 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 4.1(c), it the Company will, no later than ~~three~~ 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 Shares or~~ Unregistered Warrant Shares, as applicable, issued with a restrictive legend (such ~~third 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 ~~4.1~~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. (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 ~~per share purchase price and exercise price, respectively, of Shares and~~ Unregistered Warrant Shares (based on the VWAP of the shares of Common Stock on the date such ~~Shares and/or Warrant Shares~~ 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 5th Trading Day)~~ until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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, 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-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 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 ~~Shares or~~ Unregistered Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this Section 4.1(d). (e) In The Preferred Shares, the ~~event a Purchaser shall request delivery of unlegended shares as described in this Section 4.1~~ Conversion Shares, the Registered 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) 15% of the amount of the aggregate purchase price of the Shares and Registered Warrant Shares 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 (NXT-Id, Inc.), Securities Purchase Agreement (NXT-Id, Inc.)

Removal of Legends. (a) The ~~Shares, the~~ Common Stock Warrants and the Warrant Shares issuable upon exercise of the Common Stock Warrants may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Common Stock Warrants or the Warrant Shares issuable upon exercise of the Common Stock 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 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, 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 ~~Restricted~~ Common Stock Warrant under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the ~~Shares, the~~ Common Stock Warrants or the Warrant Shares issuable upon exercise of the Common Stock 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. 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 Stock Warrants or Warrant Shares issuable upon exercise thereof 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 Stock Warrants or Warrant Shares issuable upon exercise thereof 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~~ Common Stock Warrants or Warrant Shares issuable upon exercise thereof may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Common Stock Warrants or Warrant ~~Shares~~Shares issuable upon exercise thereof. (c) Certificates evidencing the ~~Shares and the~~ Warrant Shares underlying the Common Stock Warrants 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, or (ii) following any sale of such ~~Shares or~~ Warrant Shares underlying the Common Stock Warrants pursuant to Rule ~~144~~144 (assuming cashless exercise of the Common Stock Warrants), or (iii) if such ~~Shares or~~ Warrant Shares underlying the Common Stock Warrants are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Common Stock 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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 Stock 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 Stock Warrants, or if such ~~Shares or~~ Warrant Shares underlying the Common Stock Warrants 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 Stock Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Warrant Shares underlying the Common Stock 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 4.1(c), it the Company will, no later than ~~three~~ 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~~ the applicable Warrant Shares, as applicable, issued with a restrictive legend (such ~~third 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 ~~4.1~~4. ~~Certificates for Shares or~~ Warrant Shares underlying the Common Stock Warrants 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~~. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based~~ on the ~~VWAP of~~ Company’s primary Trading Market with respect to the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 lowest closing sale price of the Common Stock on any Trading Day during the period commencing 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 4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares which is subject to the injunction or temporary restraining order, or (ii) the VWAP of underlying 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 favorWarrants issued with a restrictive legend.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Enveric Biosciences, Inc.), Securities Purchase Agreement (Enveric Biosciences, 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 ~~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 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, 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 Restricted Warrant~~ 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 the Registration Rights Agreement and shall have the rights and obligations of a Purchaser under this Agreement and the Registration Rights Agreement. (b) The Purchasers agree to the imprinting, so long as is required by this Section 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.” (c) 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~~ 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 identified in the resale registration statement thereunder. (cd) Certificates or book entry notations evidencing the ~~Shares and the Warrant Shares~~ Securities shall not contain any legend (including the legend set forth in Section 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 security is effective under the Securities Act, or (ii) following any sale of such ~~Shares or Warrant Shares~~ Securities pursuant to Rule ~~144,~~ 144 (assuming cashless exercise of the Warrants) or (iii) if such ~~Shares or Warrant Shares~~ Securities are eligible for sale under Rule ~~144, without~~ 144 (assuming cashless exercise of 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 (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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 ~~Section 4(a)(1),~~ 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 4.1(c), it the Company will, no later than ~~three~~ 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 ~~third~~ 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 ~~4.1~~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~~. (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, in cash, as partial liquidated damages and not as a penalty, for each $1,000~~ number of per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten Trading Days~~. Nothing herein shall limit such Purchaser’s right to pursue actual damages for~~ , on 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 lowest 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 4.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended shares as described in this Section 4.1 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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~~ Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~Warrants or Warrant Shares~~ the 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 ~~4.1(b~~4.1(c), 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, 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 ~~Restricted Warrant~~ Securities under the Securities Act. (b) The ~~Purchasers agree~~ Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of a legend on any of the ~~Shares, the Warrants or Warrant Shares~~ Securities in the following form: ~~NEITHER~~ [NEITHER] THIS SECURITY [NOR THE SECURITIES ~~INTO~~ [FOR] 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 APPLICABLE STATE SECURITIES LAWS,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 AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. TO THE EXTENT PERMITTED BY APPLICABLE 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. . (c) 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 the Registration Rights 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~~ the Securities may reasonably request in connection with a pledge or transfer of the ~~Shares or Warrant Shares. (c~~Securities, 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) Certificates evidencing the Shares and the 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~~ Act 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 other applicable ~~requirements~~ provision of the Securities Act ~~(including Section 4(a)(1), judicial interpretations and pronouncements issued by~~ to appropriately amend the ~~staff~~ list of the SEC) (the “Effective Date”). The Company shall, 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 Section 4(a)(1), 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 4.1(c), it will, no later than 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 third 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 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. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 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 4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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.selling stockholders thereunder

Appears in 1 contract

Samples: Securities Purchase Agreement (EnerJex Resources, Inc.)

Removal of Legends. (a) ~~The Shares,~~ Each Purchaser understands that the ~~Warrants~~ Securities shall bear a restrictive legend in substantially the following form (and ~~Warrant Shares~~ a stop transfer order may ~~only~~ be ~~disposed of in compliance with state and federal securities laws. In connection with any~~ placed against transfer of ~~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 4.1(b),~~ certificates for 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, 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 Restricted Warrant under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR Securities): “THE SECURITIES ~~INTO WHICH~~ REPRESENTED BY THIS ~~SECURITY IS EXERCISABLE~~ CERTIFICATE HAVE 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 (~~AMENDED, OR THE “SECURITIES ~~ACT”), AND, ACCORDINGLY,~~ LAWS OF ANY STATE OF THE UNITED STATES OR IN ANY OTHER JURISDICTION. THE SECURITIES REPRESENTED HEREBY MAY NOT BE ~~OFFERED~~ OFFERED, SOLD OR ~~SOLD EXCEPT PURSUANT TO~~ TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT ~~UNDER~~ FOR THE SECURITIES ~~ACT~~ UNDER APPLICABLE SECURITIES LAWS UNLESS OFFERED, SOLD OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION ~~FROM, OR IN A TRANSACTION NOT SUBJECT TO,~~ FROM THE REGISTRATION REQUIREMENTS OF ~~THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES~~ THOSE 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.” (b) ~~UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.~~ The Company ~~acknowledges and agrees~~ shall, at its sole expense, upon appropriate notice from any Purchaser stating that ~~a Purchaser may from time to time pledge~~ Registrable Shares have been sold pursuant to ~~a bona fide margin agreement with a registered broker~~an effective Resale Registration Statement, timely prepare and deliver certificates or book-~~dealer or grant a security interest in some or all of~~ entry shares representing the ~~Shares or Warrant Shares~~ Securities to be delivered to a ~~financial institution that is an “accredited investor”~~ transferee pursuant to the Resale Registration Statement, which certificates or book-entry shares shall be free of any restrictive legends and in such denominations and registered in such names 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~~ request. Further, the Company shall, at its sole expense, cause its legal counsel or ~~secured Shares or Warrant Shares~~ other counsel satisfactory to the ~~pledgees~~ Transfer Agent: (i) while the Resale Registration Statement is effective, to issue to the Transfer Agent a “blanket” legal opinion to allow the legend on the Securities to be removed or ~~secured parties~~sales without restriction pursuant to the effective Resale Registration Statement (for clarity, at the time of the legend removal request, the Purchaser shall provide customary representation letters to the Company, the Company’s counsel and the Transfer Agent certifying, among other things, that the Securities will be sold only in accordance with and pursuant to the Resale Registration Statement), and (ii) provide all other opinions as may reasonably be required by the Transfer Agent in connection with the removal of legends. ~~Such a pledge or transfer would not be~~ A Purchaser may request that the Company remove, and, subject to ~~approval of~~ receipt from the Purchaser by the Company and ~~no legal opinion~~ the Transfer Agent of ~~legal counsel of~~ customary representations and other customary documentation reasonably acceptable to the ~~pledgee, secured party or pledgor shall be required~~ Company and the Transfer Agent in connection therewith~~. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense~~, the Company ~~will execute and deliver~~ agrees to authorize the removal of, any legend from such ~~reasonable documentation as~~ Securities, following the delivery by a ~~pledgee~~ Purchaser to the Company or ~~secured party~~ the Company’s Transfer Agent of ~~Shares and Warrant Shares may reasonably~~ a legended certificate representing such Securities (or a request for legend removal, in ~~connection with a pledge or transfer~~ the case of Securities issued in book-entry form): (i) if there is an effective Resale Registration Statement covering the ~~Shares or Warrant Shares. (c) Certificates evidencing~~ resale of the Shares and the Warrant Shares ~~shall not contain any legend~~ (~~including~~ for clarity, at the time of the legend ~~set forth in Section 4.1(b) hereof): (i) while a registration statement covering~~ removal request, the ~~resale of such security is effective under~~ Purchaser shall provide customary representation letters to the Company, the Company’s counsel and the Transfer Agent certifying, among other things, that the Securities ~~Act~~will be sold only in accordance with and pursuant to the Resale Registration Statement), (ii) following any sale of such ~~Shares or Warrant Shares~~ Securities pursuant to Rule 144, or (iii) if such ~~Shares or Warrant Shares~~ Securities are eligible for sale without current public information requirements under Rule ~~144, without the requirement for the Company to be in compliance with~~ 144(b)(1) (or if the current public information ~~required under~~ requirements will have been satisfied at the time such Securities have been held for at least one year within the meaning of 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 Section 4(a)(1), judicial interpretations and pronouncements issued by the staff of the SEC) (the “Effective Date”144). ~~The Company shall~~If a legend removal request is made pursuant to and in accordance with the foregoing, 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 Section 4(a)(1), 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 4.1(c), it will, no later than ~~three~~ two Trading Days following the delivery by a Purchaser to the Company or the Company’s Transfer Agent of a legended certificate representing ~~restricted Shares~~ such Securities (or ~~Warrant Shares~~a request for legend removal, ~~as applicable,~~ in the case of Securities issued ~~with a restrictive legend~~ in book-entry form) (~~such 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~~ legends or ~~give instructions to~~ an equivalent book-entry position, as requested by the ~~Transfer Agent that enlarge the restrictions on transfer set forth in this Section 4.1~~Purchaser. Certificates for Shares or and Warrant Shares ~~subject to legend removal hereunder shall~~ free from all restrictive legends may be transmitted by the Company’s Transfer Agent to the ~~Purchaser~~ Purchasers by crediting the account of the Purchaser’s prime broker with the Depository Trust Company ~~system~~ (“DTC”) as directed by such Purchaser~~. (d) In addition~~ . The Company warrants that the Securities shall otherwise be freely transferable on the books and records of the Company as and to ~~such Purchaser’s other available remedies~~the extent provided in this Agreement. If a Purchaser effects a transfer of the Securities in accordance with this Section 5.9(b), ~~(i)~~ the Company shall ~~pay to a Purchaser~~permit the transfer and, in ~~cash, as partial liquidated damages and not as a penalty, for each $1,000~~ the case of ~~per share purchase price and exercise price, respectively,~~ the transfer of Shares ~~and~~ or Warrant ~~Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant Shares are submitted~~ Shares, shall promptly instruct its Transfer Agent to issue one or more certificates or credit shares to the ~~Transfer Agent) delivered for~~ applicable balance accounts at DTC in such name and in such denominations as specified by such Purchaser to effect such transfer. Each Purchaser hereby agrees that the removal of the restrictive legend ~~and subject~~ pursuant to this Section ~~4.1(c), $10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day~~5.9(b) ~~until such certificate~~ is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten Trading Days. 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, 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 reliance that such Purchaser ~~anticipated receiving from~~ will sell any such Securities pursuant to either the ~~Company without any restrictive legend, then,~~ Resale Registration Statement and 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 lowest closing sale price registration requirements 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 4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 4.1 and the Company is required to deliver such unlegended sharesSecurities Act, ~~(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 Documentsprospectus delivery requirements, 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 favorexemption therefrom.

Appears in 1 contract

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

Removal of Legends. (a) The ~~Shares~~Ordinary Share Warrants, ~~the Warrants and~~ Ordinary Warrant Shares and Ordinary Warrant ADSs may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~Warrants or~~ Ordinary Share Warrants, Ordinary Warrant Shares or Ordinary Warrant ADSs 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 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, 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 ~~Restricted~~ Ordinary Share Warrant under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the ~~Shares~~Ordinary Share Warrants, ~~the Warrants or~~ Ordinary Warrant Shares or Ordinary Warrant ADSs 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. 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 Ordinary Share Warrants, Ordinary Warrant Shares or Ordinary Warrant ~~Shares~~ ADSs 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 Ordinary Share Warrants, Ordinary Warrant Shares or Ordinary Warrant ~~Shares~~ ADSs 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 Ordinary Warrants, Ordinary Warrant Shares and Ordinary Warrant ~~Shares~~ ADSs may reasonably request in connection with a pledge or transfer of the Ordinary Share Warrant, Ordinary Warrant Shares or Ordinary Warrant ~~Shares~~ADSs. (c) Certificates evidencing the ~~Shares and the~~ Ordinary Warrant ~~Shares~~ ADSs 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, or (ii) following any sale of such ~~Shares or~~ Ordinary Warrant ~~Shares~~ ADSs pursuant to Rule ~~144~~144 (assuming cashless exercise of the Ordinary Share Warrants), or (iii) if such ~~Shares or~~ Ordinary Warrant ~~Shares~~ ADSs 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, at its expense,~~ shall cause its counsel to issue a legal opinion to the depositary for the ADSs, The Bank of New York Mellon (the “Transfer ~~Agent~~ 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~~ADSs, or if such ~~Shares or~~ Ordinary Warrant ~~Shares~~ ADSs 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Ordinary Warrant ~~Shares~~ ADSs 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 4.1(c), it the Company will, no later than ~~three~~ 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~~ADSs, as applicable, issued with a restrictive legend (such ~~third 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 ~~4.1~~4. ~~Certificates for Shares or~~ Ordinary Warrant ~~Shares~~ ADSs 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~~. (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, in cash, as partial liquidated damages and not as a penalty, for each $1,000~~ number of per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten Trading Days~~. Nothing herein shall limit such Purchaser’s right to pursue actual damages for~~ , on 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 lowest 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 4.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended shares as described in this Section 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated~~ a certificate representing Ordinary 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (RedHill Biopharma Ltd.)

Removal of Legends. (a) The ~~Shares~~New Warrant, ~~the Warrants~~ New Warrant ADSs and New Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~Warrants or~~ the New Warrant, New Warrant ADSs and New Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of ~~a Purchaser~~ the Investor or in connection with a pledge as contemplated in Section ~~4.1(b~~4(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, 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 ~~Restricted~~ New Warrant, New Warrant ADSs and New Warrant Shares under the Securities Act. (b) The ~~Purchasers agree~~ Investor agrees to the imprinting, so long as is required by this Section ~~4.1~~4, of a legend on any of the ~~Shares~~New Warrant, ~~the Warrants or~~ New Warrant ADSs and New Warrant Shares in substantially 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”)) OR APPLICABLE STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE ~~OFFERED~~ OFFERED, SOLD, PLEDGED, OR ~~SOLD~~ OTHERWISE DISTRIBUTED OR TRANSFERRED 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. NO REPRESENTATION IS MADE BY THE ISSUER AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT FOR RESALES OF THESE SECURITIES. The Company acknowledges and agrees that ~~a Purchaser~~ the Investor 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~~ New Warrant, New Warrant ADSs and New 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~~ the Investor may transfer pledged or secured ~~Shares or~~ New Warrant, New Warrant ADSs and New 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~~Investor’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of ~~Shares~~ the New Warrant, New Warrant ADSs and New Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares or~~ New Warrant, New Warrant ADSs and New Warrant Shares. (c) ~~Certificates evidencing the Shares and the Warrant Shares shall not contain~~ Legends on any ~~legend~~ (including the legend set forth in Section ~~4.1(b~~4(b) hereof): ) certificates evidencing the New Warrant ADSs and New Warrant Shares shall be removed in connection with any sale or transfer of New Warrant ADSs or New Warrant Shares, as applicable: (i) while a registration statement covering the resale of such security is effective (and not subject to blackout) under the Securities ~~Act~~Act and such sale or transfer is in accordance with the plan of distribution described therein, or (ii) following any sale of such ~~Shares~~ New Warrant ADSs or New Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the New Warrant), or (iii) if such ~~Shares~~ New Warrant ADSs or New Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the New Warrant), 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, at its expense,~~ shall use commercially reasonable efforts to cause its counsel to issue a legal opinion to the Depositary or if the Ordinary Shares are listed on the Trading Market, the Company’s transfer agent (“Transfer ~~Agent~~ Agent”), as applicable, or the Investor promptly ~~after the Effective Date~~ if required by the Depositary or Transfer ~~Agent~~ Agent, as applicable, to effect the removal of the legend hereunder, or if requested by the Investor, respectively, in accordance with the provisions of this Section 4. If all or any portion of ~~a Note is converted or a~~ an New Warrant is exercised at a time when ~~there is an effective registration statement to cover the resale of the Shares~~ such New Warrant ADSs or ~~the Warrant Shares, or if such Shares or~~ New Warrant Shares may be sold without restriction 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 New Warrant) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares~~ New Warrant ADSs or New 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 ~~4.1(c~~4(c), ~~it will~~the Company will use commercially reasonable efforts to, no later than ~~three~~ 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~~ the Investor to the Company or the ~~Transfer Agent~~ Depositary of a certificate representing ~~restricted Shares~~ New Warrant ADSs or New Warrant Shares, as applicable, issued with a restrictive legend (such ~~third Trading Day~~date, the “Legend Removal Date”), receipt of notice of the sale or other permitted disposition and receipt from the Purchaser of a customary seller representation letter and other documentation reasonably requested by the Company, its Depositary or Transfer Agent, as applicable, and the Company’s Depositary or Transfer Agent, as applicable, 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 shall use commercially reasonable efforts to promptly deliver any instructions required to be delivered to the Depositary or Transfer Agent, as applicable, in accordance with such delivery of book-entry security entitlements. The Company may not make any notation on its records or give instructions to the Depositary or Transfer ~~Agent~~ Agent, as applicable, that enlarge the restrictions on transfer set forth in this Section ~~4.1~~4. ~~Certificates for~~ The Investor hereby agrees that the removal of the restrictive legend pursuant to this Section 4 is predicated upon the Company’s reliance that the Investor will sell any such New Warrant ADSs or New Warrant Shares pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom. New Warrant ADSs or New Warrant Shares subject to legend removal hereunder shall be transmitted by the ~~Transfer Agent~~ Depositary to the ~~Purchaser~~ Investor by crediting the account of the ~~Purchaser~~Investor’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser~~. (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, in cash, as partial liquidated damages and not as a penalty, for each $1,000~~ number of per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten Trading Days~~. Nothing herein shall limit such Purchaser’s right to pursue actual damages for~~ , on 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~~ADSs, 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 lowest 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~~ a certificate representing New Warrant ADSs or New Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 4.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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: Warrant Amendment and New Warrant Issuance Agreement (Kazia Therapeutics LTD)

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 Restricted Warrants or Restricted Warrant Shares other than pursuant to (i) an effective registration statement or Rule 144, (ii) to the Company or to an Affiliate of a Purchaser or (iii) in connection with a pledge as contemplated in Section ~~4.1(b~~4.12(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, 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 Restricted Warrant under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section ~~4.1~~4.12, 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 HAS] [THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE 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. 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 shall not contain any legend (including the legend set forth in Section ~~4.1(b~~4.12(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~~ Restricted Warrant Shares pursuant to Rule 144, (iii) if such ~~Shares or~~ Restricted 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~~ Restricted 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) (~~the~~ “Effective Date”). The Company ~~shall, 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~~ 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~~ Restricted 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~~ Restricted 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Restricted 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 ~~4.1(c~~4.12(c), it will, no later than three Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing ~~restricted Shares or~~ Restricted Warrant Shares, as applicable, issued with a restrictive legend (such 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 ~~4.1~~4. Certificates for ~~Shares or~~ Restricted 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. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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~~ Restricted Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the 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~~ Restricted Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this ~~Section 4.1(d~~clause (d). (e) In The Shares shall be issued free of legends. If all or any portion of a Series A Warrant is exercised at a time when there is an effective registration statement to cover the ~~event a Purchaser~~ issuance or resale of the Series A Warrant Shares or if the Series A Warrant is exercised via cashless exercise, the Series A Warrant Shares issued pursuant to any such exercise shall ~~request delivery~~ be issued free of ~~unlegended shares as described in this Section 4.1 and~~ all legends. If at any time following the date hereof the Registration Statement (or any subsequent registration statement registering the sale or resale of the Series A Warrant Shares) is not effective or is not otherwise available for the sale or resale of the Series A Warrant Shares, the Company shall immediately notify the holders of the Series A Warrants in writing that such registration statement is ~~required~~ not then effective and thereafter shall promptly notify such holders when the registration statement is effective again and available for the sale or resale of the Series A Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to ~~deliver such unlegended shares~~issue, ~~(i) it~~ or any Purchaser to sell, any of the Series A Warrant Shares in compliance with applicable federal and state securities laws). Notwithstanding anything to the contrary, the Company shall ~~pay all fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees,~~ cause its 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~~ Series A Warrant Shares to a transferee of a holder of Series A Warrants in connection with any ~~claim~~ sale of Series A Warrant Shares with respect to which a holder of Series A Warrants has entered into a contract for sale, prior to such holder’s receipt of a notice notifying such holder that such ~~Purchaser or anyone associated or affiliated with~~ registration statement is not then effective and for which such ~~Purchaser~~ holder has not ~~complied with Purchaser’s obligations under~~ yet settled. The Company shall use best efforts to keep a registration statement (including the ~~Transaction Documents,~~ Registration Statement) registering the issuance 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 resale of the ~~greater of (i) 15%~~ Series A Warrant Shares effective during the term of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 favorSeries A Warrants.

Appears in 1 contract

Samples: Securities Purchase Agreement (Digital Ally 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 Common Warrants or Warrant Shares other than pursuant to an effective registration statement with a current prospectus, or ~~Rule 144,~~ to the ~~Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 4.1(b)~~Company, the Company ~~at its sole cost~~ may require the transferor thereof to provide to the Company an opinion of counsel at the expense of the transferor, selected by the transferor and reasonably acceptable to 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 ~~Restricted Warrant~~ Common Warrants under the Securities Act. (b) The ~~Purchasers agree to the imprinting~~Purchaser agrees, so long as is required by this Section 4.1, of book entry notations evidencing the Common Warrants (and any Common Warrant Shares) shall bear a ~~legend on any of the Shares~~restrictive legend, ~~the Warrants or Warrant Shares~~ substantially in the following form: ~~NEITHER THIS SECURITY NOR~~ THE SECURITIES ~~INTO WHICH THIS SECURITY IS EXERCISABLE~~ REPRESENTED HEREBY HAVE 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 U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “~~SECURITIES~~ ACT”~~), AND, ACCORDINGLY,~~ ) AND ARE “RESTRICTED SECURITIES” AS DEFINED IN RULE 144 PROMULGATED UNDER THE ACT. THE SECURITIES MAY NOT BE ~~OFFERED~~ OFFERED, SOLD, PLEDGED, OR ~~SOLD~~ OTHERWISE DISTRIBUTED OR TRANSFERRED EXCEPT (i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ~~SECURITIES~~ ACT OR (ii) PURSUANT TO AN ~~AVAILABLE~~ EXEMPTION ~~FROM~~FROM REGISTRATION UNDER THE ACT, OR AND, IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS THE COMPANY AND DEPOSITARY HAVE RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO EACH OF THEM THAT SUCH TRANSACTION DOES NOT ~~SUBJECT TO, THE~~ REQUIRE 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. 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 SharesACT. (c) ~~Certificates~~ The book entry ledger of the transfer agent evidencing the ~~Shares and the~~ Common Warrant Shares shall not contain any legend (including the legend set forth in Section 4.1(b) hereof): (i) while a registration statement with a current prospectus covering the resale of such security is effective under the Securities Act, (ii) following any sale of such ~~Shares or~~ Common Warrant Shares pursuant to Rule 144, (iii) if such ~~Shares or Warrant~~ Common Warrants 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~~ Common 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) (~~the~~ “Effective Date”). The Company ~~shall, at its expense,~~ shall cause its counsel to issue a legal opinion to the ~~Transfer Agent~~ transfer agent promptly after the Effective Date if required by the ~~Transfer Agent~~ 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 without limitation or restriction 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~~ Common 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 ~~Section 4(a)(1),~~ 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~~ Effective Date and at such time as such legend is no longer required under this Section 4.1(c), it will, no later than ~~three~~ 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~~ transfer agent of a certificate representing ~~restricted~~ Common Warrant Shares or ~~Warrant Shares, as applicable~~book entry position representing the shares, issued with a restrictive legend (such ~~third Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to ~~such~~ the Purchaser a certificate or book entry position 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~~ transfer agent that enlarge the restrictions on transfer set forth in this Section ~~4.1~~4. Certificates for ~~Shares or~~ Common Warrant Shares subject to legend removal hereunder shall be transmitted by the ~~Transfer Agent~~ 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~~. (d) In addition to such Purchaser’s other available remedies~~. “Standard Settlement Period” means the standard settlement period, ~~(i) the Company shall pay to~~ expressed in a ~~Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000~~ number of per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten Trading Days~~. Nothing herein shall limit such Purchaser’s right to pursue actual damages for~~ , on 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 lowest 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 4.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended shares as described in this Section 4.1 and~~ a certificate representing 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 favorShares.

Appears in 1 contract

Samples: Securities Purchase Agreement (electroCore, Inc.)

Removal of Legends. (a) The Shares, ~~the~~ Pre-Funded Warrants and Pre-Funded Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~Warrants or Warrant Shares~~ any such Securities other than pursuant to an effective registration statement or Rule 144, when available, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 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, 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 ~~Restricted Warrant~~ Securities under the Securities Act. (b) The Purchasers ~~agree~~ agrees to the ~~imprinting~~inclusion, so long as is required by this Section 4.1, of a legend on ~~any~~ the book-entry accounts (or, as applicable, certificates) for each of the Shares, ~~the~~ Pre-Funded Warrants or and Pre-Funded Warrant Shares in substantially 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~~ 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. . (c) 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~~ any of the 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~~ any of the Securities may reasonably request in connection with a pledge or transfer of the ~~Shares or Warrant Shares~~Securities. (c) Certificates evidencing the Shares and the 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, (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 Section 4(a)(1), judicial interpretations and pronouncements issued by the staff of the SEC) (the “Effective Date”). The Company shall, 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 Section 4(a)(1), 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 4.1(c), it will, no later than 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 third 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 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. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 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 4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (Connexa Sports Technologies 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 ~~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 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, 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 Restricted Warrant~~ 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 the Registration Rights Agreement and shall have the rights and obligations of a Purchaser under this Agreement and the Registration Rights Agreement. (b) The Purchasers agree to the imprinting, so long as is required by this Section 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.” (c) 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~~ 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 identified in the resale registration statement thereunder. (cd) Certificates or book entry notations evidencing the ~~Shares and the Warrant Shares~~ Securities shall not contain any legend (including the legend set forth in Section 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 security is effective under the Securities Act, or (ii) following any sale of such ~~Shares or Warrant Shares~~ Securities pursuant to Rule ~~144,~~ 144 (assuming cashless exercise of the Warrants) or (iii) if such ~~Shares or Warrant Shares~~ Securities are eligible for sale under Rule ~~144, without~~ 144 (assuming cashless exercise of 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 (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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 ~~Section 4(a)(1),~~ 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 4.1(c), it the Company will, no later than ~~three~~ 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 Warrant Shares~~Securities, as applicable, issued with a restrictive legend (such ~~third~~ first (1st) 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 ~~4.1~~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~~. (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, in cash, as partial liquidated damages and not as a penalty, for each $1,000~~ number of per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten Trading Days~~. Nothing herein shall limit such Purchaser’s right to pursue actual damages for~~ , on 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 lowest 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 4.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended shares as described in this Section 4.1 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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~~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 ~~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 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, 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 ~~Restricted~~ Warrant under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 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. 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, Warrant ADSs and Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Warrants, Warrant ADSs or Warrant Shares. (c) ~~Certificates evidencing the~~ The Warrant Shares and ~~the~~ Warrant ~~Shares~~ ADSs shall not ~~contain~~ carry any ~~legend~~ restriction (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, or (ii) following any sale of such ~~Shares~~ Warrant ADSs or Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants), or (iii) if such ~~Shares~~ Warrant ADSs 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, at its expense,~~ shall cause its counsel to issue a legal opinion to the ~~Transfer Agent~~ Registrar or a Purchaser promptly ~~after the Effective Date~~ if required by the ~~Transfer Agent~~ Registrar to effect the removal of ~~the legend~~ any restriction (including, if applicable, any legend) hereunder, or if requested by such 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 Warrant Shares or Warrant ~~Shares~~ ADSs 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares or~~ Warrant Shares and Warrant ADSs shall be issued ~~or reissued free of all legends~~unrestricted in electronic form. 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 4.1(c), it the Company will, no later than ~~three~~ two (2) Trading Days following the delivery by a Purchaser to the Company or the ~~Transfer Agent~~ Registrar of ~~a certificate representing restricted Shares~~ Warrant ADSs or Warrant Shares, as applicable, issued with ~~a restrictive~~ restrictions, including, if applicable, any legend (such ~~third Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to each Purchaser such ~~Purchaser a certificate representing such Shares~~ Warrant ADSs or Warrant Shares that ~~is free from all restrictive and other legends~~are unrestricted in electronic form. The Company may not make any notation on its records or give instructions to the ~~Transfer Agent~~ Registrar that enlarge the restrictions on transfer set forth in this Section ~~4.1~~4. ~~Certificates for Shares or~~ Warrant ADSs and Warrant Shares subject to ~~legend~~ restriction removal hereunder shall be transmitted by the ~~Transfer Agent~~ Registrar to ~~the~~ such Purchaser by crediting the account of ~~the~~ such Purchaser’s prime broker with the Depository Trust Company ~~system~~ System as directed by such Purchaser. (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 ~~per share purchase price and exercise price, respectively, of Shares and~~ Warrant ~~Shares~~ ADSs (based on the VWAP ~~of the Common Stock~~ on the date that such ~~Shares and/or Warrant Shares~~ Securities are submitted to the ~~Transfer Agent~~Registrar) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day for each Trading Day after the Legend Removal Date ~~(increasing to $20 per Trading Day after the 5th Trading Day)~~ until such ~~certificate is~~ Warrant ADSs are delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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, 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 such Warrant ADSs so delivered to the Company by such Purchaser that are unrestricted in electronic form and (b) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) ~~shares of Common Stock to deliver~~ ADSs 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~~ ADSs equal to all or any portion of the number of ~~shares of Common Stock~~ ADSs, that such Purchaser anticipated receiving from the Company without any ~~restrictive legend~~restriction, ~~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-pocket expenses, if any) for the shares of ~~Common Stock~~ ADSs 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~~ ADSs that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the lowest closing sale price of the ~~Common Stock~~ ADSs 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~~ ADSs (as the case may be) and ending on the date of such delivery and payment under this Section 4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the The Shares and Warrant Shares 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 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 (IMMUTEP LTD)

Removal of Legends. (a) The Debenture, 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 Debenture, 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 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, 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 ~~Restricted~~ Debentures, Warrants or Warrant Shares under the Securities Act. (b) ~~The Purchasers agree~~ Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Debenture, 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. .” (c) 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~~ Debenture, 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~~ the Debenture, Shares, Warrants and Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Debenture, Shares, Warrants or Warrant Shares. (cd) Certificates evidencing the Shares ~~and the~~ 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, 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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. 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 ~~Section 4(a)(1),~~ 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 ~~4.1(c~~4.1(d), it the Company will, no later than ~~three~~ 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 Purchaser and the holding period of the Shares or Warrants issued with a restrictive legend (such ~~third 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 ~~4.1~~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. 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~~ Acuitas’ 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 ~~per share purchase price and exercise price, respectively, of~~ Shares ~~and~~ or Warrant Shares (based on the volume weighted average price or VWAP of the Common Stock on the date such ~~Shares and/or Warrant Shares~~ securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section ~~4.1(c~~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 5th Trading Day)~~ until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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, 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-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 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 ~~4.1(d~~4.1(e). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 Warrants~~ Common Warrants, Pre-Funded Warrants, Common Warrant Shares and Pre-Funded Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~Warrants or Warrant Shares~~ any such 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 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, 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 ~~Restricted Warrant~~ Securities under the Securities Act. (b) The Purchasers ~~agree~~ agrees to the imprinting, so long as is required by this Section 4.1, of a legend on ~~any~~ each of the Shares, ~~the Warrants or~~ Common Warrants, Pre-Funded Warrants, Common Warrant Shares and Pre-Funded Warrant Shares in substantially 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~~ 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. . (c) 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~~ any of the 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~~ any of the Securities may reasonably request in connection with a pledge or transfer of such Securities, including, if the ~~Shares~~ 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. (cd) Certificates evidencing the Shares and ~~the~~ 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, 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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, 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 ~~Section 4(a)(1),~~ 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 4.1(c), it the Company will, no later than ~~three~~ 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 ~~third 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 ~~4.1~~4. ~~Certificates for~~ Shares or and Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to ~~the~~ each 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~~. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based~~ on the ~~VWAP of~~ Company’s primary Trading Market with respect to the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 lowest closing sale price of the Common Stock on any Trading Day during the period commencing effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable~~ a certificate representing Shares or Warrant ~~Shares (~~Shares, as the case may be~~) and ending on the date of such delivery and payment under this Section 4.1(d)~~, issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (Muscle Maker, Inc.)

Removal of Legends. (a) The ~~Shares~~Common Warrants, ~~the Warrants~~ Pre-Funded Warrants, and Common Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Common Warrants, Pre-Funded 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 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, 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 ~~Restricted~~ Common Warrant or Pre-Funded Warrant under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the ~~Shares~~Common Warrants, ~~the~~ Pre-Funded Warrants or Common 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. . (c) 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 Warrant Shares. (cd) Certificates evidencing ~~the Shares and~~ the 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, 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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, 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 ~~Section 4(a)(1),~~ 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 4.1(c), it the Company will, no later than ~~three~~ 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 ~~third 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 ~~4.1~~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. 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 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 ~~per share purchase price and exercise price, respectively, of Shares and~~ Warrant Shares (based on the VWAP of the Common Stock on the date such ~~Shares and/or Warrant Shares~~ 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 5th Trading Day)~~ until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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, 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-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 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 4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (Opgen Inc)

Removal of Legends. (a) The ~~Shares~~Ordinary Share Warrants, ~~the Warrants and~~ Ordinary Warrant Shares and the Ordinary Warrant ADSs may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~Warrants or~~ Ordinary Share Warrants, Ordinary Warrant Shares or Ordinary Warrant ADSs 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 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, 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 ~~Restricted~~ Ordinary Share Warrant under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the ~~Shares~~Ordinary Share Warrants, the ~~Warrants~~ Ordinary Warrant ADSs or Ordinary Warrant Shares in substantially 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”)) OR APPLICABLE STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE ~~OFFERED~~ OFFERED, SOLD, PLEDGED, OR ~~SOLD~~ OTHERWISE DISTRIBUTED OR TRANSFERRED 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. NO REPRESENTATION IS MADE BY THE ISSUER AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT FOR RESALES OF THESE SECURITIES. 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~~ Ordinary Share Warrants, Ordinary Warrant ADSs 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, Ordinary Warrant ADSs 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 Warrants, Ordinary Warrant ADSs and Ordinary Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Ordinary Share Warrants, Ordinary Warrant ADSs or Ordinary Warrant Shares. (c) ~~Certificates evidencing the Shares and the Warrant Shares shall not contain~~ Legends on any ~~legend~~ (including the legend set forth in Section 4.1(b) hereof): ) certificates evidencing the Ordinary Warrant ADSs and Ordinary Warrant Shares shall be removed in connection with any sale or transfer of Ordinary Warrant ADSs or Ordinary Warrant Shares, as applicable: (i) while a registration statement covering the resale of such security is effective (and not subject to blackout) under the Securities ~~Act~~Act and such sale or transfer is in accordance with the plan of distribution described therein, or (ii) following any sale of such ~~Shares~~ Ordinary Warrant ADSs or Ordinary Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Ordinary Share Warrants), or (iii) if such ~~Shares~~ Ordinary Warrant ADSs 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, at its expense,~~ shall use commercially reasonable efforts to cause its counsel to issue a legal opinion to the Depositary or if the Ordinary Shares are listed on the Trading Market, the Company’s transfer agent (“Transfer ~~Agent~~ Agent”), as applicable, or the Purchaser promptly ~~after the Effective Date~~ if required by the Depositary or Transfer ~~Agent~~ Agent, as applicable, 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~~ such Ordinary Warrant ADSs or ~~the Warrant Shares, or if such Shares or~~ Ordinary Warrant Shares may be sold without restriction 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such ~~Shares~~ Ordinary Warrant ADSs 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 4.1(c), ~~it will~~the Company will use commercially reasonable efforts to, no later than ~~three~~ 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~~ Ordinary Warrant ADSs or Ordinary Warrant Shares, as applicable, issued with a restrictive legend (such ~~third Trading Day~~date, the “Legend Removal Date”), receipt of notice of the sale or other permitted disposition and receipt from the Purchaser of a customary seller representation letter and other documentation reasonably requested by the Company, its Depositary or Transfer Agent, as applicable, and the Company’s Depositary or Transfer Agent, as applicable, 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 shall use commercially reasonable efforts to promptly deliver any instructions required to be delivered to the Depositary or Transfer Agent, as applicable, in accordance with such delivery of book-entry security entitlements. The Company may not make any notation on its records or give instructions to the Depositary or Transfer ~~Agent~~ Agent, as applicable, that enlarge the restrictions on transfer set forth in this Section ~~4.1~~4. ~~Certificates for~~ Each Purchaser hereby agrees that the removal of the restrictive legend pursuant to this Section 4.1 is predicated upon the Company’s reliance that such Purchaser will sell any such Ordinary Warrant ADSs or Ordinary Warrant Shares pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom. Ordinary Warrant ADSs 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~~. (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, in cash, as partial liquidated damages and not as a penalty, for each $1,000~~ number of per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten Trading Days~~. Nothing herein shall limit such Purchaser’s right to pursue actual damages for~~ , on 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~~ADSs, 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 lowest 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~~ a certificate representing Ordinary Warrant ADSs or Ordinary Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 4.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (Kazia Therapeutics 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 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 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, 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 Restricted Warrant under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 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. 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 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, (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 Section 4(a)(1), judicial interpretations and pronouncements issued by the staff of the SEC) (the “Effective Date”). The Company shall, 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 Section 4(a)(1), 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 4.1(c), it will, no later than 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 third 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 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. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the ~~5th~~ 10th Trading Day) until such certificate is delivered without a legend~~. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 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 4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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~~ pay clearing firm charges in connection with the ~~issuance of Common Stock,~~legend removal; 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (BTCS Inc.)

Removal of Legends. (a) The Preferred Shares, ~~the~~ Conversion Shares, Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Preferred Shares, 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 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, 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 ~~Restricted Warrant~~ Warrants under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Preferred Shares, ~~the~~ Conversion Shares, Warrants or Warrant Shares in the following form: NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE OR 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 OR 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. 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 Conversion Shares ~~and the~~ and/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, or (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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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~~ Preferred Share is converted into shares of Common Stock 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~~ and/or Warrant Shares, as applicable, or if such Conversion Shares or and/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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such Conversion Shares or and/or Warrant ~~Shares~~ Shares, as applicable, 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 4.1(c), it the Company will, no later than ~~three~~ 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~~ Conversion Shares or Warrant Shares, as applicable, issued with a restrictive legend (such ~~third 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 ~~4.1~~4. ~~Certificates for~~ Conversion Shares or and/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~~. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based~~ on the ~~VWAP of~~ Company’s primary Trading Market with respect to the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 lowest closing sale price of the Common Stock on any Trading Day during the period commencing 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 4.1(d). (e) In the event a Purchaser shall request delivery of ~~unlegended~~ a certificate representing shares ~~as described in this Section 4.1 and the Company is required to deliver such unlegended shares, (i) it shall pay all fees and expenses associated~~ 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (Sigma Additive Solutions, 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 Common Warrants or the Common Warrant Shares other than pursuant to an effective registration statement or Rule ~~144~~144 or other exemption available to the Purchaser under the Securities Act, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 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, 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 ~~Restricted~~ Common Warrant or Common Warrant Shares under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Common Warrants or the Common Warrant Shares, as the ~~Warrants or Warrant Shares~~ case may be, substantially in the following form: NEITHER THIS SECURITY [NOR THE SECURITIES ~~INTO~~ FOR WHICH THIS SECURITY IS ~~EXERCISABLE HAVE~~ EXERCISABLE] 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. 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~~ the Common Warrants and the Common Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Common Warrants or the Common Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Common 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, 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) or successor rule or other registration exemption pursuant to the Securities Act, 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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 Common Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Section 4(a)(1),~~ 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 4.1(c), it the Company will, no later than ~~three~~ 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 ~~third 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 ~~4.1~~4. ~~Certificates for Shares or~~ Any 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~~. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based~~ on the ~~VWAP of~~ Company’s primary Trading Market with respect to the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 lowest closing sale price of the Common Stock on any Trading Day during the period commencing effect on the date of delivery of a certificate representing the ~~delivery by such Purchaser to the Company of the applicable Shares or~~ Common Warrant Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 4.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (Worksport LTD)

Removal of Legends. (a) The Shares, ~~the Warrants~~ Common Warrants, Pre-Funded Warrants, Common Warrant Shares and Pre-Funded Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~Warrants or Warrant Shares~~ any such 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 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, 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 ~~Restricted Warrant~~ Securities 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 the Registration Rights Agreement and shall have the rights and obligations of a Purchaser under this Agreement and the Registration Rights Agreement. (b) The Purchasers ~~agree~~ agrees to the imprinting, so long as is required by this Section 4.1, of a legend on ~~any~~ each of the Shares, ~~the Warrants or~~ Common Warrants, Pre-Funded Warrants, Common Warrant Shares and Pre-Funded Warrant Shares in substantially 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~~ 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. . (c) 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~~ any of the 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~~ any of the Securities may reasonably request in connection with a pledge or transfer of such Securities, including, if the ~~Shares~~ 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 Shareholders (as defined in the Registration Rights Agreement) thereunder. (cd) Certificates evidencing the Shares and ~~the~~ 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, 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission), subject in the case of clauses (ii), (iii) and (iv) to receipt from the ~~“Effective Date”)~~Purchaser by the Company and the Transfer Agent of customary representations reasonably acceptable to the Company and the Transfer Agent in connection with such request. The Company ~~shall, 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, 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 ~~Section 4(a)(1),~~ 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 4.1(c), it the Company will, no later than ~~three~~ 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 ~~third Trading Day~~date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate (or account statement from the Transfer Agent) 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 ~~4.1~~4. ~~Certificates for~~ Shares or and Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to ~~the~~ each 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~~. (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, in cash, as partial liquidated damages and not as a penalty, for each $1,000~~ number of per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten Trading Days~~. 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~~ as 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 lowest closing sale price of the Common Stock on any Trading Day during the period commencing effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable~~ a certificate representing Shares or Warrant ~~Shares (~~Shares, as the case may be~~) and ending on the date of such delivery and payment under this Section 4.1(d)~~, issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (Creative Realities, 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 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 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, 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 Restricted Warrant under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 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. 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 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, (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 Section 4(a)(1), judicial interpretations and pronouncements issued by the staff of the SEC) (the “Effective Date”). The Company shall, 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 Section 4(a)(1), 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 4.1(c), it will, no later than ~~three~~ 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 ~~third~~ 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 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. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 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 4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (OncBioMune Pharmaceuticals, Inc)

Removal of Legends. (a) The ~~Shares, the~~ Unregistered Warrants and the Unregistered Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of 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 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, 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 ~~Restricted~~ Unregistered Warrants or Unregistered Warrant Shares under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the ~~Shares, the~~ Unregistered Warrants or the Unregistered Warrant Shares in the following form: ~~NEITHER~~ [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS ~~EXERCISABLE HAVE~~ EXERCISABLE] [HAS/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. 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 the 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 the Unregistered Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Unregistered 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, 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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~~. 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 requested by a Purchaser, respectively and such ~~Shares or Warrant Shares~~ legend 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 removed 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 Section 4(a)(1), 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 legendsset out above. 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 4.1(c), it the Company will, no later than ~~three~~ 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 ~~third 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 ~~4.1~~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~~. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based~~ on the ~~VWAP of~~ Company’s primary Trading Market with respect to the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 lowest closing sale price of the Common Stock on any Trading Day during the period commencing 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 4.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (Code Chain New Continent LTD)

Removal of Legends. (a) The ~~Shares~~Warrants, the Amended Warrants and the Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Warrants, Amended 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 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, 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 ~~Restricted~~ Warrants, Amended Warrants or Warrant Shares under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the ~~Shares~~Warrants, ~~the~~ Amended 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. 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, Amended 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, Amended 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, Amended Warrants and Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Warrants, Amended Warrants or Warrant Shares. (c) Certificates evidencing ~~the Shares and~~ the 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, or (ii) following any sale of such ~~Shares or~~ Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants or Amended Warrants), or (iii) if such ~~Shares or~~ Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Warrants or Amended 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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 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,~~ Warrants 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 Amended Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Section 4(a)(1),~~ 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 4.1(c), it the Company will, no later than ~~three~~ 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 ~~third 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 ~~4.1~~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~~. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based~~ on the ~~VWAP of~~ Company’s primary Trading Market with respect to the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 lowest closing sale price of the Common Stock on any Trading Day during the period commencing 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 4.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (China Bat Group, Inc.)

Removal of Legends. (a) The ~~Shares, the Warrants and Warrant Shares~~ Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~Warrants or Warrant Shares~~ the 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 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, 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 ~~Restricted Warrant~~ Securities under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the ~~Shares, the Warrants or Warrant Shares~~ Securities in the following form: ~~NEITHER~~ [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,~~ OR ANY STATE SECURITIES LAWS AND MAY NOT BE ~~OFFERED~~ SOLD, TRANSFERRED OR ~~SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT~~ OTHERWISE DISPOSED OF UNLESS (1) REGISTERED 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~~ UNDER APPLICABLE STATE SECURITIES LAWS~~. THIS SECURITY~~ , (2) PURSUANT TO RULE 144 or 144A UNDER THE SECURITIES ACT, OR (3) THE COMPANY SHALL HAVE RECEIVED AN OPINION OF COUNSEL THAT REGISTRATION OF SUCH SECURITIES [AND THE SECURITIES ISSUABLE UPON ~~EXERCISE~~ [EXERCISE] OF THIS ~~SECURITY~~ SECURITY] UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED. NOTWITHSTANDING THE FOREGOING, THE SECURITIES 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~~ACCOUNT. (c) ~~UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.~~ 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 evidencing the Shares and ~~the~~ 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, 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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 the Shares, or 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 ~~Section 4(a)(1),~~ 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 4.1(c), it the Company will, no later than ~~three~~ 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 ~~third 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 ~~4.1~~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. 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 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 ~~per share purchase price and exercise price, respectively, of~~ Shares ~~and~~ or Warrant Shares (based on the VWAP of the Common Stock on the date such ~~Shares and/or Warrant Shares~~ 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 5th Trading Day)~~ until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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, 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-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 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 4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (Opgen 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 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 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, 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 Restricted Warrant under the Securities Act. (b) The ~~Purchasers agree~~ Purchaser agrees to the imprinting, so long as is required by this Section 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. 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 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~~ securities is effective under the Securities 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 Section 4(a)(1), judicial interpretations and pronouncements issued by the staff of the SEC) (the “Effective Date”). The Company shall, 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 Section 4(a)(1), 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 4.1(c), it will, no later than ~~three~~ 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 ~~third~~ 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 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. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the ~~5th~~ fifth (5th) Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $~~1,000.00~~ 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-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 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 4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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 (i) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the ~~trading day~~ 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 1 contract

Samples: Securities Purchase Agreement (OncBioMune Pharmaceuticals, 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 Common Warrants or and 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 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, 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 ~~Restricted Warrant~~ Common Warrants under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the ~~Shares, the~~ Common Warrants or and Common Warrant Shares in the following form: ~~NEITHER~~ [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE ~~HAVE~~ 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~~ 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 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~~ Common Warrants and 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 or~~ Common Warrants and 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 or~~ Common Warrants and Common Warrant Shares. (c) Certificates evidencing the ~~Shares and the~~ Common 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, 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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~~ Common Warrants 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 Common Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Section 4(a)(1),~~ 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 4.1(c), it the Company will, no later than ~~three~~ 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 ~~third 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 ~~4.1~~4. ~~Certificates for Shares or~~ The 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~~. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based~~ on the ~~VWAP of~~ Company’s primary Trading Market with respect to the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 lowest closing sale price of the Common Stock on any Trading Day during the period commencing 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 4.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (Palatin Technologies Inc)

Removal of Legends. (a) The ~~Shares~~parties hereto acknowledge that, pursuant to the Securities Purchase Agreement, the ~~Warrants~~ Subject Shares and ~~Warrant Shares may only be disposed of~~ any securities issued in compliance with state and federal securities laws. In connection with any transfer of 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 respect thereof or in connection with a pledge as contemplated in Section 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, 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 Restricted Warrant under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Shares, the Warrants or Warrant Shares in exchange therefor will bear the following ~~form~~legends: ~~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~~ WAS ORIGINALLY ISSUED IN ~~RELIANCE UPON AN EXEMPTION~~ A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), ~~AND, ACCORDINGLY,~~ AND THIS SECURITY MAY NOT BE ~~OFFERED~~ OFFERED, SOLD OR ~~SOLD EXCEPT~~ OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) PURSUANT TO ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 OR REGULATION S UNDER THE SECURITIES ACT (IF AVAILABLE), (II) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ~~ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM~~ACT, OR (III) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN ~~A TRANSACTION NOT~~ EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. THE SALE, PLEDGE, HYPOTHECATION, OR TRANSFER OF THE SECURITIES REPRESENTED HEREBY IS SUBJECT TO, AND IN CERTAIN CASES PROHIBITED BY, THE ~~REGISTRATION REQUIREMENTS~~ TERMS AND CONDITIONS OF A CERTAIN STOCKHOLDER AGREEMENT BY AND BETWEEN ADVANTEST AMERICA, INC. AND THE COMPANY AS AMENDED FROM TIME TO TIME. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY 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. 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 SharesCORPORATION.” (cb) ~~Certificates~~ Notwithstanding the foregoing, certificates or book entries evidencing the ~~Shares and the Warrant~~ Subject Shares shall not contain any ~~legend (including the legend set forth in Section 4.1(b) hereof):~~ legend: (i) following the Lock-Up Expiration Date; (ii) following the later of any Termination Event and the date on which the Subject Shares may be Transferred pursuant to Rule 144 (or any similar rule or rules then in effect) of the SEC; (iii) while a registration statement covering the resale of such security is effective under the Securities Act, (iiiv) following any sale of such ~~Shares or Warrant~~ Subject Shares pursuant to Rule 144, (~~iii~~v) if such ~~Shares or Warrant~~ Subject 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~~ Subject Shares and without volume or manner-of-sale ~~restrictions~~ restrictions; or (ivvi) if such legend is not required under applicable requirements of the Securities Act (including ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the SEC~~) (the “Effective Date”~~). The Company ~~shall, at its expense,~~ shall cause its counsel to issue a legal opinion to the ~~Transfer Agent promptly after~~ transfer agent of such Subject Shares during the ~~Effective Date if required by~~ time any of the ~~Transfer Agent~~ aforedescribed conditions apply, to effect the removal of the legend hereunder. If Notwithstanding any other provision of this Agreement, the legend set forth in the final paragraph of Section 2.06(a) shall be set forth on all certificates or ~~any portion of a Note is converted or a Warrant is exercised at a~~ book entries evidencing the Subject Shares until such time ~~when there is an effective registration statement to cover the resale~~ as this Agreement does not restrict Transfer of the ~~Shares or the Warrant~~ Subject 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 Section 4(a)(1), 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~~ (x) the last paragraph of the legend set forth in Section 2.06(a) is no longer required under this Section ~~4.1(c~~2.06(b), it will, no later than ~~three Trading Days~~ five (5) trading days following the ~~delivery~~ written request by ~~a Purchaser~~ the Stockholder to the ~~Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as applicable, issued with a restrictive legend (such third Trading Day, the “Legend Removal Date”)~~Company, deliver or cause to be delivered to ~~such Purchaser~~ the Stockholder a certificate or evidence of book entry representing such ~~Shares~~ shares that is free from the last paragraph of the legend set forth in Section 2.06(a), and (y) no portion of the legend set forth in Section 2.06(a) is any longer required under this Section 2.06(b), it will, no later than five (5) trading days following the written request by the Stockholder to the Company, deliver or ~~Warrant Shares~~ cause to be delivered to the Stockholder a certificate or evidence of book entry representing such 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~~ legends (however, in ~~this Section 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~~ each of ~~the Purchaser’s prime broker with the Depository Trust Company system as directed by such Purchaser.~~ case (dx) ~~In addition to such Purchaser’s other available remedies,~~ and (iy) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 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 4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 4.1 and the Company is required use reasonable best efforts to deliver such ~~unlegended shares,~~ shares within three (i3) 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 favordays).

Appears in 1 contract

Samples: Stockholder Agreement (PDF Solutions Inc)

Removal of Legends. (a) The Common Warrants, Common Warrant Shares, ~~the~~ Milestone Pre-Funded Warrants and Milestone Pre-Funded Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Common Warrants, Common Warrant Shares, Milestone Pre-Funded Warrants or Milestone Pre-Funded 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 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, 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 ~~Restricted~~ Common Warrant or Milestone Pre-Funded Warrant under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Common Warrants, Common Warrant Shares, ~~the~~ Milestone Pre-Funded Warrants or Milestone Pre-Funded 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. 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, Common Warrant Shares, Milestone Pre-Funded Warrants or Milestone Pre-Funded 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, Common Warrant Shares, Milestone Pre-Funded Warrants or Milestone Pre-Funded 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, Common Warrant Shares, Milestone Pre-Funded Warrants and Milestone Pre-Funded Warrant Shares may reasonably request in connection with a pledge or transfer of the ~~Shares~~ Common Warrants, Common Warrant Shares, Milestone Pre-Funded Warrants or Milestone Pre-Funded Warrant Shares. (c) Certificates evidencing the Common Warrant Shares ~~and the~~ or Milestone Pre-Funded 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, or (ii) following any sale of such Common Warrant Shares or Milestone Pre-Funded Warrant Shares pursuant to Rule ~~144~~144 (assuming cashless exercise of the Common Warrants), or (iii) if such Common Warrant Shares or Milestone Pre-Funded Warrant Shares are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Common Warrants or Milestone Pre-Funded 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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, 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 Section 4(a)(1), 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 4.1(c), it will, no later than 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 third 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 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. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based on the VWAP of the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 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 4.1(d). (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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.Common

Appears in 1 contract

Samples: Securities Purchase Agreement (Achieve Life Sciences, Inc.)

Removal of Legends. (a) The Shares, ~~the Warrants~~ Common Warrants, Pre-Funded Warrants, Common Warrant Shares and Pre-Funded Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~Warrants or Warrant Shares~~ any such Securities 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 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, 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 ~~Restricted Warrant~~ Securities under the Securities Act. (b) The ~~Purchasers agree~~ Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of a legend on ~~any~~ each of the Shares, ~~the Warrants or~~ Common Warrants, Pre-Funded Warrants, Common Warrant Shares and Pre-Funded Warrant Shares in substantially 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~~ 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. . (c) 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 Purchaser may transfer pledged or secured ~~Shares or Warrant Shares~~ any of the 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~~ any of the Securities may reasonably request in connection with a pledge or transfer of ~~the Shares or Warrant Shares~~such Securities. (cd) Certificates evidencing ~~the Shares and~~ the 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, 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 ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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 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 ~~Section 4(a)(1),~~ 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 4.1(c), it the Company will, no later than ~~three~~ 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 Shares or~~ Warrant Shares, as applicable, issued with a restrictive legend (such ~~third 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 ~~4.1~~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~~. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based~~ on the ~~VWAP of~~ Company’s primary Trading Market with respect to the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 lowest closing sale price of the Common Stock on any Trading Day during the period commencing 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 4.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (Muscle Maker, Inc.)

Removal of Legends. (a) The Warrants, the Warrant Shares, the Unregistered Preferred Shares, the Unregistered Prefunded Warrants and ~~Warrant~~ the Unregistered Conversion Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Warrants, Warrant Shares, Unregistered Preferred Shares, Unregistered Prefunded Warrants or ~~Warrant Shares~~ Unregistered 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 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, 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 ~~Restricted~~ Warrants, Warrant Shares, Unregistered Preferred Shares, Unregistered Prefunded Warrants or Unregistered Conversion Shares under the Securities Act. (b) The ~~Purchasers agree~~ Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Warrants, Warrant Shares, ~~the~~ Unregistered Preferred Shares, Unregistered Prefunded Warrants or ~~Warrant~~ Unregistered 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. . (d) 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 Warrant Shares and ~~the Warrant~~ Conversion 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 Warrant Shares or ~~Warrant~~ Conversion Shares pursuant to Rule ~~144~~144 (assuming, in the case of Warrant Shares, cashless exercise of the Warrants), (iii) if such Warrant Shares or ~~Warrant~~ Conversion Shares are eligible for sale under Rule ~~144~~144 (assuming, ~~without~~ in the ~~requirement for~~ case of Warrant 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~~ Warrants), or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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 is converted~~ Warrant or a an Unregistered Prefunded Warrant is exercised or the Unregistered Preferred Shares is converted at a time when there is an effective registration statement to cover the resale of the Warrant Shares or ~~the Warrant~~ Unregistered Conversion Shares, or if such Warrant Shares or ~~Warrant~~ Unregistered Conversion Shares may be sold under Rule 144 ~~and~~ (assuming, in the ~~Company is then in compliance with~~ case of Warrants, 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 Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC)~~ Commission), then such Warrant Shares or ~~Warrant Shares~~ Unregistered 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 ~~4.1(c~~4.1(e), it the Company will, no later than ~~three~~ 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~~ Warrant Shares or ~~Warrant~~ Unregistered Conversion Shares, as applicable, issued with a restrictive legend (such ~~third 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 ~~4.1~~4. ~~Certificates for~~ Warrant Shares ~~or Warrant~~ and Unregistered 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~~. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based~~ on the ~~VWAP of~~ Company’s primary Trading Market with respect to the Common Stock on the date such Shares and/or Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-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 lowest closing sale price of the Common Stock on any Trading Day during the period commencing effect on the date of ~~the~~ delivery ~~by such Purchaser to the Company~~ of ~~the applicable~~ a certificate representing Warrant Shares or ~~Warrant~~ Unregistered Conversion Shares ~~(as the case may be) and ending on the date of such delivery and payment under this Section 4.1(d)~~issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (AzurRx BioPharma, Inc.)

Removal of Legends. (a) The ~~Shares~~Warrants, ~~the Warrants and~~ Unregistered Pre-Funded Warrants, Warrant Shares and shares of Common Stock underlying the Unregistered Pre-Funded Warrants may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of ~~Warrants or~~ Warrants, Unregistered Pre-Funded Warrants, Warrant Shares or the shares of Common Stock underlying the Unregistered Pre-Funded 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 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, 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 ~~Restricted~~ Warrant or Unregistered Pre-Funded Warrant under the Securities Act. (b) The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the ~~Shares~~Warrants, ~~the Warrants or~~ Unregistered Pre-Funded Warrants, Warrant Shares or the shares of Common Stock underlying the Unregistered Pre-Funded 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. 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 Warrants, Unregistered Pre-Funded Warrants, Warrant Shares or ~~Warrant Shares~~ the shares of Common Stock underlying the Unregistered 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 Warrants, Unregistered Pre-Funded Warrants, Warrant Shares or ~~Warrant Shares~~ the shares of Common Stock underlying the Unregistered 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~~ Warrants, Unregistered Pre-Funded Warrants, Warrant Shares or the shares of Common Stock underlying the Unregistered Pre-Funded Warrants may reasonably request in connection with a pledge or transfer of the Warrants, Unregistered Pre-Funded Warrants, Warrant Shares or ~~Warrant Shares~~the shares of Common Stock underlying the Unregistered Pre-Funded Warrants. (c) Certificates evidencing the Warrant Shares and the ~~Warrant Shares~~ shares of Common Stock underlying the Unregistered Pre-Funded Warrants 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, or (ii) following any sale of such Warrant Shares or ~~Warrant Shares~~ the shares of Common Stock underlying the Unregistered Pre-Funded Warrants pursuant to Rule ~~144~~144 (assuming cashless exercise of the Warrants or Unregistered Pre-Funded Warrants, as applicable), or (iii) if such Warrant Shares or ~~Warrant Shares~~ shares of Common Stock underlying the Unregistered Pre-Funded Warrants are eligible for sale under Rule ~~144~~144 (assuming cashless exercise of the Warrants or Unregistered Pre-Funded 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~~ applicable), or (iv) if such legend is not required under applicable requirements of the Securities Act (including ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC) (the “Effective Date”~~Commission). The Company ~~shall, 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~~ Warrant or ~~a Warrant~~ Unregistered Pre-Funded Warrant, as applicable, is exercised at a time when there is an effective registration statement to cover the resale of the Warrant Shares or the ~~Warrant Shares~~shares of Common Stock underlying the Unregistered Pre-Funded Warrants, or if such Warrant Shares or ~~Warrant Shares~~ the shares of Common Stock underlying the Unregistered Pre-Funded Warrants 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~~Warrants or Unregistered Pre-Funded Warrants, ~~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~~ applicable) or if such legend is not otherwise required under applicable requirements of the Securities Act (including ~~Section 4(a)(1),~~ judicial interpretations and pronouncements issued by the staff of the ~~SEC~~Commission) then such Warrant Shares or ~~Warrant Shares~~ such shares of Common Stock underlying the Unregistered 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 4.1(c), it the Company will, no later than ~~three~~ 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~~ Warrant Shares or ~~Warrant Shares~~the shares of Common Stock underlying the Unregistered Pre-Funded Warrants, as applicable, issued with a restrictive legend (such ~~third Trading Day~~earlier 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 ~~4.1~~4. ~~Certificates for Shares or~~ Warrant Shares and shares of Common Stock underlying the Unregistered Pre-Funded Warrants 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~~. (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 per share purchase price and exercise price, respectively, of Shares and Warrant Shares (based~~ on the ~~VWAP of~~ Company’s primary Trading Market with respect to the Common Stock as in effect on the date ~~such Shares and/or~~ of delivery of a certificate representing Warrant 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 for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the 5th Trading Day) until such certificate is delivered without a legend. In no event shall liquidated damages for any one transaction exceed $1,000.00 for the first ten 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-pocket expenses, if any) for the shares of Common Stock ~~so purchased (including brokerage commissions and other out~~underlying the Unregistered Pre-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 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 4.1(d)Funded Warrants issued with a restrictive legend. (e) In the event a Purchaser shall request delivery of unlegended shares as described in this Section 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) 15% of the amount of the aggregate purchase price of the Shares and Warrant Shares 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 (Titan Pharmaceuticals Inc)

Common use of Removal of Legends Clause in Contracts