Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise of the Warrants ("Shares"), unless a registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant to an exemption from the registration requirements of all applicable federal and state securities laws. (b) Each certificate evidencing the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise of the Warrants shall bear such a legend until such time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, in the opinion of legal counsel to the Company, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIME. (c) Subject to the next sentence below, beginning on the date that the Warrants are exercised, if the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form S-4 Registration Statement could be used), it shall, at least 30 days prior to such filing, give written notice of such proposed filing to the holders of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d), at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), in such filing any proposed disposition of such Shares upon receipt by the Company, not less than 10 days prior to the proposed filing date, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such offering advises the Company in writing that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, then, such Shares shall not be included in the Registration Statement, provided that no other shares of the Company's Common Stock are included in the registration pursuant to any other piggyback registration rights granted to others. In the event that Shares requested to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c). (d) In addition to any Registration Statement pursuant to Section 12(c) hereof, after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 days from the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such Registration Statement under this Section 12(d). The Company shall not be required to effect a registration pursuant to this Section 12(d) if the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period. (e) All fees, disbursements, and out-of-pocket expenses incurred in connection with the filing of any Registration Statement under Section 12(c) hereof and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein in such quantities as may be reasonably requested by such holders. (f) Each holder of Shares to be included in a Registration Statement pursuant to this Section 12 agrees to reasonably cooperate with the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company in order for the Company to perform its obligations under this Section 12. (g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to any other registration rights previously granted by the Company.
Appears in 1 contract
Samples: Loan Agreement (Garcia Ernest C Ii)
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant The Holder agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise of the Warrants ("Shares"), unless a registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder Holder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant to an exemption from if the registration requirements of all applicable federal and state securities laws.
(b) Each certificate evidencing Company has notified the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise of the Warrants shall bear such a legend until such time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, Holder that in the opinion of legal counsel its counsel, a registration statement or post-effective amendment thereto (hereinafter collectively a "Registration Statement") under the Act is required with respect to such disposition and no such Registration Statement has been filed by the CompanyCompany with, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLDand declared effective by, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIMEthe Securities and Exchange Commission (the "Commission").
(ci) Subject to Whenever during the next sentence belowperiod ending on August 16, beginning on the date that the Warrants are exercised2002, if the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company Registration Statement (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form form S-4 Registration Statement could be used), it shall, at least 30 days promptly prior to each such filing, give written notice of such proposed filing to the holders Holder and each holder of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d), at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), include in such filing any proposed disposition of such the Shares (but not the Warrants) upon receipt by the Company, not less than 10 within 20 days prior to the proposed filing dateafter such written notice is given, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be person reasonably necessary to be included in such Registration Statement. Notwithstanding If the aboveregistration for which the Company gives notice is for a registered public offering involving an underwriting, after the Company shall so advise as part of the written notice given pursuant to this Section. In such time as event, the holders right of any Holder or holder of Shares to registration pursuant to Section 9(b)(i) shall have been given two opportunities to include be conditioned upon the participation in such underwriting of the Holder or holder of Shares, and the inclusion of their Shares in a Registration Statement of the Company pursuant underwriting shall be limited to the immediately preceding sentence, and all securities extent provided herein. All Holders or holders of holders who Shares proposing to distribute their Shares through such underwriting shall have requested such inclusion enter into an underwriting agreement in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) customary form with the managing underwriter selected for such underwriting by the Company. Notwithstanding any such offering advises other provision of this Section 9(b), if the Company in writing managing underwriter determines that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment marketing factors require a limitation of the Board number of Directors of the Company, inclusion of the Shares in the registration would shares to be seriously detrimental to the Company, thenunderwritten, such Shares shall not underwriter may limit the amount of securities to be included in the Registration Statementregistration and underwriting by the holders of Company securities exercising "piggyback" registration rights (including the Holder and each holder of Shares). The Company shall so advise all such holders of Company securities exercising "piggyback" registration rights, provided that no other and the number of shares of the Company's Common Stock are such securities that may be included in the registration pursuant and underwriting shall be allocated among all of such holders, in proportion, as nearly as practicable, to any other piggyback registration rights granted to others. In the event that Shares respective amounts of securities requested by such holders to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 such registration statement. Any securities excluded or withdrawn from such registration and Shares hereunder with respect to such offering underwriting shall not be counted against the limitation provided for in the second sentence of this Section 12(c).
transferred prior to one hundred twenty (d120) In addition to any Registration Statement pursuant to Section 12(c) hereof, days after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 days from the effective date of the Registration Statement; providedregistration statement relating thereto, however, or such shorter period of time as the underwriters may require.
(ii) In the event that the Company shall only be obligated to file one any such Registration Statement under this Section 12(d). The Company shall not is utilized for a public offering of any of the Shares to be required to effect a registration received upon exercise of the Warrants pursuant to this Section 12(d) if 9, the Company shall furnish Holder may elect to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by pay the Chairman Exercise Price of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental Warrants to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt out of the request proceeds of the initiating holders; provided that sale of the Shares pursuant to the Registration Statement concurrently with the closing of such right to delay a request shall sale of the Shares. In such event, (1) the Shares will not be exercised issued by the Company until they are sold, and (2) the Shares will not more than once in any twelve (12) month periodbe delivered to the purchaser of such Shares until satisfactory provision is made for paying the Warrant Price to the Company with respect to such Shares.
(ec) All fees, disbursements, disbursements and out-of-pocket expenses incurred (other than the Holder's brokerage fees and commissions and legal fees of counsel to the Holder, if any) in connection with the filing of any Registration Statement statement under Section 12(c9(b) hereof (or obtaining the opinion of counsel and any no-action position of the Commission with respect to sales under Rule 144) and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders any Holder and any holder of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein and other related documents any opinions and no-action letters in such quantities as may be reasonably requested by the Holder or holder of Shares.
(d) The Company shall not be required by this Section 9 to file such holdersRegistration Statement if, in the opinion of counsel for the Holders and holders of Shares and the Company (or, should they not agree, in the opinion of another counsel experienced in securities law matters acceptable to counsel for such holders and the Company), the proposed transfer as to which such Registration Statement is requested is exempt from applicable federal and state securities laws under Rule 144 promulgated under the Act.
(e) The provisions of this Section 9 and Section 10 hereof shall apply to the extent as provided herein if the Company chooses to file an Offering Statement under Regulation A promulgated under the Act.
(f) Each holder of Shares to be included in The Company agrees that until all shares have been sold under a Registration Statement or pursuant to this Section 12 agrees Rule 144 under the Act, it will use its best efforts to reasonably cooperate keep current in filing all materials required to be filed with the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company Commission in order for to permit the Company holders of such securities to perform its obligations sell the same under this Section 12Rule 144.
(g) The Company shall be entitled, for a reasonable period of time which in no event shall exceed 60 days (i) to postpone the filing of a Registration Statement or any amendment or supplement thereto or to the prospectus relating thereto otherwise required, or (ii) to suspend effectiveness of the Registration Statement, if the Company (a) determines, in its reasonable judgment, that the registration or sale of the Shares would materially interfere with any pending or proposed financing, acquisition, corporate reorganization or other material transaction involving the Company or any of its subsidiaries, and (b) promptly gives those persons exercising their registration right hereunder written notice of such determination.
(h) The Company may require those persons exercising their registration rights provided hereunder to furnish to the Company such information regarding the distribution of such Shares as the Company may from time to time request in writing and such other information as may be legally required in connection with such registration.
(i) At any time when a prospectus relating to a sale of the Shares is required to be delivered under the Act, there occurs an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the Shares, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, then the Company will promptly make available to any Holder any such supplement of amendment. Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in the preceding sentence hereof, such Holder will forthwith discontinue disposition of Shares pursuant to the Registration Statement covering such Shares until the Holder's receipt of the copies of the supplemented or amended prospectus, and, if so directed by the Company, the Holder will deliver to the Company all copies, other than permanent file copies then in the Holder's possession, of the prospectus covering such Shares current at the time of receipt of such notice. If such amendments or supplements are not made by the Company within ten (10) days of such notice by the Company or if in the opinion of counsel to the Holders such amendments or supplements to the prospectus, if made, are insufficient in light of the requirements of the Act and other applicable law, the Holders shall not be deemed to have exercised their demand registration rights pursuant to Section 12(c9(b)(i) and Section 12(d) above are subject to any other registration rights previously granted by the Companyherein.
Appears in 1 contract
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant The Warrantholder agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise of the Warrants Shares other than to persons or entities identified in clauses ("Shares"i) through (v), unless a registration statement under the Securities Act inclusive, of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities lawsSection 1.3, the holder Warrantholder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant if the Company has notified the Warrantholder that in the opinion of counsel reasonably satisfactory to an exemption from the Warrantholder a registration requirements of all applicable federal statement or other notification or post-effective amendment thereto (hereinafter collectively a "Registration Statement") under the Act is required with respect to such disposition and state securities lawsno such Registration Statement has been filed by the Company with, and declared effective, if necessary, by the Securities and Exchange Commission (the "Commission").
(b) Each certificate evidencing The Company shall be obligated to the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise owners of the Warrants shall bear such and the Shares to file a legend until such time Registration Statement as such Shares have been sold pursuant to a registration statement contemplated in subsection follows: (ci) or (d) below or unless, in Whenever during the opinion of legal counsel to the Company, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.
(c) Subject to the next sentence below, four-year period beginning on the date that the Warrants are exercised___________, if 1998 and ending on ___________, 2002, the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company Registration Statement (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form S-4 Registration Statement could be used), it shall, at least 30 twenty (20) days prior to such each filing, give written notice of such proposed filing to the holders Warrantholder and each holder of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d)Shares, at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), include in such filing any proposed disposition of such the Shares upon receipt by the Company, not less than 10 ten (10) days prior to the proposed filing date, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be person reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter underwriter, if any, for any such said offering advises the Company in writing that the inclusion of such Shares securities in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, thenoffering, such Shares securities shall not nevertheless be included in the Registration Statement, Statement provided that no other shares the Warrantholder and each holder of the Company's Common Stock are Warrants and Shares desiring to have such securities included in the registration pursuant to any other piggyback registration rights granted to others. In the event that Shares requested to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c).
(d) In addition to any Registration Statement pursuant to Section 12(c) hereofagrees in writing, after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 days from the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such Registration Statement under this Section 12(d). The Company shall not be required to effect a registration pursuant to this Section 12(d) if the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety thirty (9030) days after receipt following such offering not to sell or otherwise dispose of the request of the initiating holders; provided that such right securities pursuant to delay a request shall be exercised by such Registration Statement, which Registration Statement the Company not more than once in any twelve shall keep effective for a period of at least nine months following the expiration of such thirty (1230) month day period.
(e) All fees, disbursements, and out-of-pocket expenses incurred in connection with the filing of any Registration Statement under Section 12(c) hereof and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein in such quantities as may be reasonably requested by such holders.
(f) Each holder of Shares to be included in a Registration Statement pursuant to this Section 12 agrees to reasonably cooperate with the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company in order for the Company to perform its obligations under this Section 12.
(g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to any other registration rights previously granted by the Company.
Appears in 1 contract
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant The Holder agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise of the Warrants ("Shares"), unless a registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder Holder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant if the Company has notified the Holder that in the opinion of its counsel, a registration statement or other notification or post-effective amendment thereto (hereinafter collectively a "Registration Statement") under the Act is required with respect to an exemption from such disposition and no such Registration Statement has been filed by the registration requirements of all applicable federal Company with, and state securities lawsdeclared effective, if necessary, by, the Securities and Exchange Commission (the "Commission").
(bi) Each certificate evidencing At any time commencing six months after the Warrants shall bear closing of the Company's initial public offering of its securities and prior to May 31, 2000, the Company will, as promptly as practicable (but in any event within 60 days), after written request by a legend in substantially person or persons holding (or having the 36 following form, and each certificate evidencing right to acquire by virtue of holding the Warrants) at least 50% of the Shares issuable which have been (or may be) issued upon exercise of the Warrants shall bear Warrants, prepare and file at such Holders' expense a legend until Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the Shares (but not Warrants) and will use its best efforts, at such time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unlessHolders' expense, through its officer, directors, auditors and counsel, in all matters necessary or advisable, to cause such Registration Statement to become effective as promptly as practicable and to keep such registration effective for a period of the opinion lesser of legal counsel 90 days or the date of completion of the distribution described in the Registration Statement; provided, however, that the Company shall only be obligated to the Company, file one such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIMERegistration Statement under this Section 11(b)(i).
(cii) Subject to Whenever during the next sentence belowperiod ending on May 31, beginning on the date that the Warrants are exercised2000, if the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company Registration Statement (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form form S-4 Registration Statement could be used), it shall, at least 30 days promptly prior to each such filing, give written notice of such proposed filing to the holders Holder and each holder of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d), at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), include in such filing any proposed disposition of such the Shares (but not the Warrants) upon receipt by the Company, not less than 10 within 20 days prior to the proposed filing dateafter such written notice is given, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be person reasonably necessary to be included in such Registration Statement. If the registration for which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise as part of the written notice given pursuant to this Section. In such event, the right of any Holder or holder of Shares to registration pursuant to Section 11(b)(i) shall be conditioned upon such holder's participation in such underwriting, and the inclusion of Shares in the underwriting shall be limited to the extent provided herein. All holders proposing to distribute their Shares through such underwriting shall (together with the Company and the other holders distributing their Shares through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter selected for such underwriting by the Company. Notwithstanding any other provision of this Section, if the abovemanaging underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, after such time as underwriter may limit the amount of securities to be included in the registration and underwriting by the holders of Company securities exercising "piggyback" registration rights (including the Holder and each holder of Warrants and Shares). The Company shall have been given two opportunities to include their Shares so advise all such holders, and the number of shares of such securities that may be included in a Registration Statement the registration and underwriting shall be allocated among all of the Company pursuant such holders, in proportion, as nearly as practicable, to the immediately preceding sentence, and all respective amounts of securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been be included in such registration held by such holders at the time of filing the registration statement, no security holder other than one exercising a Registration Statement which demand registration right shall have become effective superior rights with respect to inclusion in a registration than those of the Holder and each holder of Warrants and Shares and if any party is granted such securities superior rights hereafter the Holder and each holder of Warrants and Shares shall have been effectively registered under the Securities Act, the be deemed to be automatically granted similar rights. The Company will have no further obligation to shall advise all such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such offering advises the Company in writing that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment limitations and of the Board number of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, then, such Shares shall not securities that may be included in the Registration Statement, provided that no other shares of the Company's Common Stock are included in the registration pursuant to any other piggyback registration rights granted to others. In the event that Shares requested to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 and Shares hereunder with respect to Any securities excluded or withdrawn from such offering underwriting shall not be counted against the limitation provided for in the second sentence of this Section 12(c).
transferred prior to one hundred twenty (d120) In addition to any Registration Statement pursuant to Section 12(c) hereof, days after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 days from the effective date of the Registration Statement; providedregistration statement relating thereto, however, or such shorter period of time as the underwriters may require.
(iii) In the event that the Company shall only be obligated to file one any such Registration Statement under this Section 12(d). The Company shall not is utilized for a public offering of any of the Shares to be required to effect a registration received upon exercise of the Warrants pursuant to this Section 12(d) if 10, the Company shall furnish Holder may elect to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by pay the Chairman Exercise Price of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental Warrants to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt out of the request proceeds of the initiating holderssale of the Shares pursuant to the Registration Statement concurrently with the closing of such sale of the Shares; provided that if such right to delay a request sale is not closed within 90 days of the effective date of such Registration Statement, then the Holder shall be exercised by obligated to pay the Exercise Price of the Warrants to the Company not more than once in any twelve (12) month periodon such 90th day.
(ec) All fees, disbursements, disbursements and out-of-pocket expenses incurred (other than the Holder's brokerage fees and commissions and legal fees of counsel to the Holder, if any) in connection with the filing of any Registration Statement statement under Section 12(c10(b) hereof (or obtaining the opinion of counsel and any no-action position of the Commission with respect to sales under Rule 144) and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders any Holder and any holder of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein and other related documents any opinions and no-action letters in such quantities as may be reasonably requested by the Holder or holder of Shares.
(d) The Company shall not be required by this Section 10 to file such holdersRegistration Statement if, in the opinion of counsel for the Holders and holders of Shares and the Company (or, should they not agree, in the opinion of another counsel experienced in securities law matters acceptable to counsel for such holders and the Company), the proposed transfer as to which such Registration Statement is requested is exempt from applicable federal and state securities laws under Rule 144 under the Act.
(e) The provisions of this Section 10 and Section 11 hereof shall apply to the extent as provided herein if the Company chooses to file an Offering Statement under Regulation A promulgated under the Act.
(f) Each holder of The Company agrees that until all Shares to be included in have been sold under a Registration Statement or pursuant to this Section 12 agrees Rule 144 under the Act, it will use its best efforts to reasonably cooperate keep current in filing all materials required to be filed with the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company Commission in order for to permit the Company holders of such securities to perform its obligations sell the same under this Section 12Rule 144.
(g) The Company shall be entitled, for a reasonable period of time which in no event shall exceed 60 days (i) to postpone the filing of a Registration Statement or any amendment or supplement thereto or to the prospectus relating thereto otherwise required, or (ii) to suspend effectiveness of the Registration Statement, if the Company (a) determines, in its reasonable judgment, that the registration or sale of the Shares would materially interfere with any pending or proposed financing, acquisition, corporate reorganization or other material transaction involving the Company or any of its subsidiaries, and (b) promptly gives those persons exercising their registration right hereunder written notice of such determination.
(h) The Company may require those persons exercising their registration right hereunder to furnish to the Company such information regarding the distribution of such Shares as the Company may from time to time request in writing and such other information as may be legally required in connection with such registration.
(i) At any time when a prospectus relating to a sale of the Shares is required to be delivered under the Act, there occurs an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the Shares, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, the Company will promptly make available to any Holder any such supplement of amendment. Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in the preceding sentence hereof, such Holder will forthwith discontinue disposition of Shares pursuant to the Registration Statement covering such Shares until the Holder's receipt of the copies of the supplemented or amended prospectus, and, if so directed by the Company, the Holder will deliver to the Company all copies, other than permanent file copies then in the Holder's possession, of the prospectus covering such Shares current at the time of receipt of such notice. If such amendments or supplements are not made by the Company within ten (10) days of such notice by the Company or if in the opinion of counsel to the Holders such amendments or supplements to the prospectus, if made, are insufficient in light of the requirements of the Act and other applicable law, the Holders shall not be deemed to have exercised their demand registration rights provided pursuant to Section 12(c10(b)(i) and Section 12(d) above are subject to any other registration rights previously granted by the Companyherein.
Appears in 1 contract
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant a. The Holder agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise of the Warrants ("Shares"), unless a registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder Holder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant to an exemption from if the registration requirements of all applicable federal and state securities laws.
(b) Each certificate evidencing Company has notified the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise of the Warrants shall bear such a legend until such time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, Holder that in the opinion of legal counsel reasonably satisfactory to the CompanyHolder a registration statement or other notification or post-effective amendment thereto (hereinafter collectively a "Registration Statement") under the Act is required with respect to such disposition and no such Registration Statement has been filed by the Company with, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLDand declared effective, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIMEby the Securities and Exchange Commission.
(ci) Subject At any time commencing after the closing of the Company's initial public offering of its securities and prior to November 30, 2003, the Company will, as promptly as practicable (but in any event within 60 days), after written request by a person or persons holding (or having the right to acquire by virtue of holding the Warrants) at least 50% of the Shares which have been (or may be) issued upon exercise of all of the Warrants that were issued to the next sentence belowshareholders of XImage upon the acquisition of XImage by ImageWare, beginning on prepare and file at the Company's expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the Shares (but not the Warrants) and will use its best efforts through its officers, directors, auditors and counsel, in all matters necessary or advisable, to cause such Registration Statement to become effective as promptly as practicable and to keep such registration effective for a period of the lesser of 90 days or the date of completion of the distribution described in the Registration Statement; provided, however, that the Warrants are exercisedCompany shall only be obligated to file one such Registration Statement under this Section 9(b)(i).
(ii) Whenever during the period ending on November 30, if 2003, the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company Registration Statement (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form form S-4 Registration Statement could be used), it shall, at least 30 days promptly prior to each such filing, give written notice of such proposed filing to the holders Holder and each holder of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d), at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), include in such filing any proposed disposition of such the Shares (but not the Warrants) upon receipt by the Company, not less than 10 within 20 days prior to the proposed filing dateafter such written notice is given, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be person reasonably necessary to be included in such Registration Statement. Notwithstanding If the aboveregistration for which the Company gives notice is for a registered public offering involving an underwriting, after the Company shall so advise as part of the written notice given pursuant to this Section. In such time as event, the holders right of any Holder or holder of Shares to registration pursuant to Section 9(b)(i) shall have been given two opportunities to include be conditioned upon the participation in such underwriting of the Holder or holder of Shares, and the inclusion of their Shares in a Registration Statement of the Company pursuant underwriting shall be limited to the immediately preceding sentence, and all securities extent provided herein. All Holders or holders of holders who Shares proposing to distribute their Shares through such underwriting shall have requested such inclusion enter into an underwriting agreement in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) customary form with the managing underwriter selected for such underwriting by the Company. Notwithstanding any such offering advises other provision of this Section 9(b), if the Company in writing managing underwriter determines that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment marketing factors require a limitation of the Board number of Directors of the Company, inclusion of the Shares in the registration would shares to be seriously detrimental to the Company, thenunderwritten, such Shares shall not underwriter may limit the amount of securities to be included in the Registration Statementregistration and underwriting by the holders of Company securities exercising "piggyback" registration rights (including the Holder and each holder of Shares). The Company shall so advise all such holders of Company securities exercising "piggyback" registration rights, provided that no other and the number of shares of the Company's Common Stock are such securities that may be included in the registration pursuant and underwriting shall be allocated among all of such holders, in proportion, as nearly as practicable, to any other piggyback registration rights granted to others. In the event that Shares respective amounts of securities requested by such holders to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 such registration statement. Any securities excluded or withdrawn from such registration and Shares hereunder with respect to such offering underwriting shall not be counted against the limitation provided for in the second sentence of this Section 12(c).
transferred prior to one hundred twenty (d120) In addition to any Registration Statement pursuant to Section 12(c) hereof, days after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 days from the effective date of the Registration Statement; providedregistration statement relating thereto, however, or such shorter period of time as the underwriters may require.
(iii) In the event that the Company shall only be obligated to file one any such Registration Statement under this Section 12(d). The Company shall not is utilized for a public offering of any of the Shares to be required to effect a registration received upon exercise of the Warrants pursuant to this Section 12(d) if 9, the Company shall furnish Holder may elect to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by pay the Chairman Exercise Price of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental Warrants to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt out of the request proceeds of the initiating holders; provided that sale of the Shares pursuant to the Registration Statement concurrently with the closing of such right to delay a request shall sale of the Shares. In such event, (1) the Shares will not be exercised issued by the Company until they are sold, and (2) the Shares will not more than once in any twelve (12) month periodbe delivered to the purchaser of such Shares until satisfactory provision is made for paying the Warrant Price to the Company with respect to such Shares.
(e) c. All fees, disbursements, disbursements and out-of-pocket expenses incurred (other than the Holder's brokerage fees and commissions and legal fees of counsel to the Holder, if any) in connection with the filing of any Registration Statement under Section 12(c9(b) hereof (or obtaining the opinion of counsel and any no-action position of the Commission with respect to sales under Rule 144) and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders any Holder and any holder of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein and other related documents any opinions and no-action letters in such quantities as may be reasonably requested by such holdersthe Holder or holder of Shares.
(f) Each holder d. The Company shall not be required by this Section 9 to file such Registration Statement if, in the opinion of counsel for the Holders and holders of Shares and the Company (or, should they not agree, in the opinion of another counsel experienced in securities law matters acceptable to be included in counsel for such holders and the Company), the proposed transfer as to which such Registration Statement is requested is exempt from applicable federal and state securities laws under Rule 144 promulgated under the Act.
e. The provisions of this Section 9 and Section 10 hereof shall apply to the extent as provided herein if the Company chooses to file an Offering Statement under Regulation A promulgated under the Act.
f. The Company agrees that until all Shares have been sold under a Registration Statement or pursuant to this Section 12 agrees Rule 144 under the Act, it will use its best efforts to reasonably cooperate keep current in filing all materials required to be filed with the Commission in order to permit the holders of such securities to sell the same under Rule 144.
g. The Company and shall be entitled, for a reasonable period of time which in no event shall exceed 60 days (i) to provide postpone the filing of a Registration Statement or any amendment or supplement thereto or to the prospectus relating thereto otherwise required, or (ii) to suspend effectiveness of the Registration Statement, if the Company on (a) determines, in its reasonable judgment, that the registration or sale of the Shares would materially interfere with any pending or proposed financing, acquisition, corporate reorganization or other material transaction involving the Company or any of its subsidiaries, and (b) promptly gives those persons exercising their registration right hereunder written notice of such determination.
h. The Company may require those persons exercising their registration rights hereunder to furnish to the Company such information regarding the distribution of such Shares as the Company may from time to time request in writing and such other information as may be legally required in connection with such registration.
i. At any time when a prospectus relating to a sale of the Shares is required to be delivered under the Act, there occurs an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the Shares, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, then the Company will promptly make available to any Holder any such supplement of amendment. Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in the preceding sentence hereof, such Holder will forthwith discontinue disposition of Shares pursuant to the Registration Statement covering such Shares until the Holder's receipt of the copies of the supplemented or amended prospectus, and, if so directed by the Company, the Holder will deliver to the Company all information concerning copies, other than permanent file copies then in the Holder's possession of the prospectus covering such holder and his Warrants and Shares that may reasonably be requested current at the time of receipt of such notice. If such amendments or supplements are not made by the Company in order for within ten (10) days of such notice by the Company or if in the opinion of counsel to perform its obligations under this Section 12.
(g) The the Holders such amendments or supplements to the prospectus, if made, are insufficient in light of the requirements of the Act and other applicable law, the Holders shall not be deemed to have exercised their demand registration rights provided pursuant to Section 12(c9(b)(i) and Section 12(d) above are subject to any other registration rights previously granted by the Companyherein.
Appears in 1 contract
Restrictions on Transfer Registration Rights. 10.1 No sale, transfer, assignment, hypothecation or other disposition of this Warrant or Warrant Shares shall be made unless any such transfer, assignment or other disposition will comply with the rules and statutes administered by the Securities and Exchange Commission and (ai) Each holder of a Warrant agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise of the Warrants ("Shares"), unless a registration statement Registration Statement under the Securities Act of 1933, as amended (the "Securities Act"), including such shares is currently in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities lawseffect, the holder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant to an exemption from the registration requirements of all applicable federal and state securities laws.
(b) Each certificate evidencing the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise of the Warrants shall bear such a legend until such time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, in the opinion of legal counsel to the Company, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.
(c) Subject to the next sentence below, beginning on the date that the Warrants are exercised, if the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form S-4 Registration Statement could be used), it shall, at least 30 days prior to such filing, give written notice of such proposed filing to the holders of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d), at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), in such filing any proposed disposition of such Shares upon receipt by the Company, not less than 10 days prior to the proposed filing date, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such offering advises the Company in writing that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the opinion of counsel a current Registration Statement is not required for such disposition of the shares.
10.2 In the event of a proposed sale or transfer of this Warrant or Warrant Shares in a transaction other than a sale pursuant to a public offering registered under the Act, a Holder shall deliver to the Company an opinion of counsel addressed to the Company (which shall be rendered by counsel reasonably acceptable to the Company) to the effect that there is the proposed transfer may be effected without registration or qualification under any Federal or state securities or blue sky law. Such counsel rendering the opinion shall, as promptly as practicable, notify the Company and the Holder of such opinion and of the terms and conditions, if any, to be observed in such transfer, whereupon the Holder shall be entitled to transfer this Warrant or the Warrant Shares (or a portion thereof).
10.3 The Company agrees that, at any time or times hereafter, until the second anniversary of the Expiration Date of this Warrant, as and when it intends to register any of its securities under the Act, whether for its own account and/or on behalf of selling stockholders (except in connection with an offering solely to its employees, an offering pursuant to an employee benefit plan, a dividend or interest reinvestment plan, or an offering solely related to an acquisition on a Form S-4 or any subsequent similar form) permitting a secondary offering or distribution the Company will notify the Holder of such intention and, upon request from the Holder, will use its best efforts to cause the Warrant Shares designated by the Holder to be registered under the Securities Act. The number of Warrant Shares to be included in such offering may be reduced if and to the extent that the underwriter of securities included in the registration statement and offered by the Company shall be of the opinion that such inclusion would adversely affect the marketing of the securities to be sold by the Company therein; provided, however, that the percentage of the reduction of such Warrant Shares shall be no managing underwritergreater than the percentage reduction of securities of other selling stockholders, if, as such percentage reductions are determined in the good faith judgment of the Board Company. The Company will use its best efforts to keep each such Registration Statement current for such period of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental time as is not otherwise burdensome to the Company.
10.4 Any registration statement referred to in subsection 10.3 hereof shall be prepared and processed in accordance with the following terms and conditions:
(i) the Holder will cooperate in furnishing promptly to the Company in writing any information requested by the Company in connection with the preparation, then, filing and processing of such Shares shall not be included in registration statement.
(ii) to the Registration Statement, provided that no other shares extent requested by an underwriter of the Company's Common Stock are securities included in the registration pursuant to any other piggyback registration rights granted to others. In the event that Shares requested to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 statement and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c).
(d) In addition to any Registration Statement pursuant to Section 12(c) hereof, after written notice upon exercise (the "Request") offered by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the WarrantsCompany, the Company will, as promptly as practicable Holder will defer the sale of Warrant Shares for a period commencing twenty (but in any event within 60 days), prepare 20) days prior and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 terminating sixty (60) days from after the effective date of the Registration Statementregistration statement, provided that any principal shareholders of the Company who also have shares included in the registration statement will also defer their sales for a similar period, except for sales pursuant to registrations on Form S-8 or S-4 or any similar or successor forms thereto.
(iii) The Company will furnish to the Holder such number of prospectuses or other documents incident to such registration as may from time to time be reasonably requested, and cause its shares to be qualified under the blue-sky laws of those states reasonably requested by the Holder.
(iv) The Company will indemnify the Holder (and any officer, director or controlling person of the Holder) and any underwriters acting on behalf of the Holder against all claims, losses, expenses, damages and liabilities (or actions in respect thereof) to which they may become subject under the Securities Act or otherwise, arising out of or based upon any untrue or alleged untrue statement of any material facts contained in any registration statement filed pursuant hereto, or any document relating thereto, including all amendments and supplements, or arising out of or based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein contained not misleading, and will reimburse the Holder (or such other aforementioned parties) or such underwriters for any legal and all other expenses reasonably incurred in accordance with investigating or defending any such claim, loss, damage, liability or action; provided, however, that the Company will not be liable where the untrue or alleged untrue statement or omission or alleged omission is based upon information furnished in writing to the Company by the Holder or any underwriter obtained by the Holder expressly for use therein, or as a result of the Holder's or any such underwriter's failure to furnish to the Company information duly requested in writing by counsel for the Company specifically for use therein; provided that with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus, the indemnity agreement contained in this paragraph shall only not inure to the benefit of any underwriter from whom the person asserting such losses, claims, damages or liability purchased the securities concerned, to the extent that any such loss, claim, damage or liability of such underwriter results from the fact that a copy of the prospectus was not sent or given to such person at or prior to the written confirmation of the sale of such securities to such person. This indemnity agreement shall be obligated in addition to file one such Registration Statement under this Section 12(d)any other liability the Company may have. The Company shall not be required to effect a registration pursuant to this Section 12(d) if indemnity agreement of the Company contained in this paragraph (iv) shall furnish to holders requesting a registration statement pursuant to this Section 12(d)remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive the delivery of and payment for the Warrant Shares.
(v) The Holder will indemnify the Company (and any officer, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors director or controlling person of the Company) and any underwriters acting on behalf of the Company against all claims, it would losses, expenses, damages and liabilities (or actions in respect thereof) to which they may become subject under the Securities Act or otherwise, arising out of or based upon any untrue or alleged untrue statement filed pursuant hereto, or any document relating thereto, including all amendments, and supplements, or arising out of or based upon the omission or alleged omission to state therein a material fact required to be seriously detrimental stated therein or necessary to make the statements therein contained not misleading, and, will reimburse the Company (or such other aforementioned parties) or such underwriters for any legal and other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability, or action; provided, however, that the Holder will be liable as aforesaid only to the extent that such untrue or alleged untrue statement or omission or alleged omission is based upon information furnished in writing to the Company and by the Holder or any underwriter obtained by the Holder expressly for use therein, or as a result of its shareholders for or such registration statement underwriter's failure to be effected at such time, in which event furnish the Company shall have the right to defer such filing with information duly requested in writing by counsel for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once specifically for use therein. This indemnity agreement contained in this paragraph (v) shall remain operative and in full force and effect regardless of any twelve (12) month periodinvestigation made by or on behalf of any indemnified party and shall survive the delivery of and payment for the Warrant Shares.
(evi) All feesPromptly after receipt by an indemnified party under this subsection 10.4 of notice of the commencement of any action, disbursementssuch indemnified party will, if a claim in respect thereof is to be made against the indemnifying party, promptly notify the indemnifying party of the commencement thereof, but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this subsection 10.4. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate in, and, to the extent that it may wish jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this subsection 10.4 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than reasonable costs of investigation or out-of-pocket expenses or losses or cost incurred in collaborating in the defense.
(vii) Except as set forth in subsection 10.4(viii), the Company shall bear all costs and expenses incident to any registration pursuant to this Section 10.
(viii) The Holder shall pay any and all underwriters' discounts, brokerage fees and transfer taxes incident to the sale of any securities sold by such Holder pursuant to this Section 10, and shall pay the fees and expenses of any special attorneys or accountants retained by it.
(ix) If the filing of any registration statement pursuant to subsection 10.4 would require the Company to obtain audited financial statements other than its normal year end audit required for the filing of its reports required under the Securities Exchange Act of 1934 (the "Exchange Act"), the Company may defer the filing of such registration statement until the necessary audited financial statements are available, unless the Holder arranges for the payment of the expense of such audit to the extent that such expense would exceed the amount which the Company would otherwise be required to bear in connection with its normal audit schedule for reporting under the Exchange Act.
10.5 If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities, expenses or actions in respect thereof referred to herein, then each indemnifying party shall in lieu of indemnifying such indemnified party contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities, expenses or actions in such proportion as is appropriate to reflect the relative fault of the Company, on the one hand, and the seller of such Warrant Shares, on the other, in connection with the filing of statements or omissions which resulted in such losses, claims, damages, liabilities, expenses or actions as well as any Registration Statement under Section 12(c) hereof and in complying with applicable securities and Blue Sky laws other relevant equitable considerations, including the failure to give the notice required hereunder. The relative fault shall be borne determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact relates to information supplied by the Company, providedon the one hand, however, that any expenses of the holders of the Warrants or the sellers of such Warrant Shares, including but not limited on the other hand, and the parties' relative intent, knowledge, access to attorneys' fees information and discounts and commissions, shall be borne by opportunity to correct or prevent such holdersstatement or omission. The Company at its expense will supply the holders of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein in such quantities as may holder hereof agree that it would not be reasonably requested by such holders.
(f) Each holder of Shares to be included in a Registration Statement just and equitable if contribution pursuant to this Section 12 were determined by pro rata allocation (even if all of the sellers of such Warrant Shares were treated as one entity for such purpose) or by any other method of allocation which did not take account of the equitable considerations referred to above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or actions in respect thereof referred to above shall be deemed to include any legal or other expenses which reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the contribution provisions of this Section, in no event shall the amount contributed by any seller from the sale of Warrant Shares to which such contribution claim relates. No person guilty of fraudulent misrepresentations (within the meaning of section 11(f) of the Act) shall be entitled to contribution from any person who is not guilty of such fraudulent misrepresentation. Each Holder of this Warrant and each Holder of Warrant Shares bearing the legend required by Section 10.6, by acceptance hereof or thereof, as the case may be, agrees to reasonably cooperate with the Company indemnification and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company in order for the Company to perform its obligations under contribution provisions of this Section 1210.5.
(g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to any other registration rights previously granted by the Company.
Appears in 1 contract
Samples: Senior Secured Notes Purchase Agreement (Aristo International Corp)
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant The Warrantholder agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise of the Warrants Shares, other than to persons or entities identified in clauses ("Shares"i) through (v), unless a registration statement under the Securities Act inclusive, of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities lawsSection 1.3, the holder Warrantholder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant if the Company has notified the Warrantholder that in the opinion of counsel reasonably satisfactory to an exemption from the Warrantholder a registration requirements of all applicable federal statement or other notification or post-effective amendment thereto (hereinafter collectively a "Registration Statement") under the Act is required with respect to such disposition and state securities lawsno such Registration Statement has been filed by the Company with, and declared effective, if necessary, by the Securities and Exchange Commission (the "Commission").
(b) Each certificate evidencing The Company shall be obligated to the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise owners of the Warrants shall bear such and the Shares to file a legend until such time Registration Statement as such Shares have been sold pursuant to a registration statement contemplated in subsection follows:
(ci) or (d) below or unlessWhenever during the four-year period beginning on ___________, in the opinion of legal counsel to the Company, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 251997 and ending on ___________, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.
(c) Subject to the next sentence below, beginning on the date that the Warrants are exercised, if the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company Registration Statement (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form S-4 Registration Statement could be used), it shall, at least 30 twenty (20) days prior to such each filing, give written notice of such proposed filing to the holders Warrantholder and each holder of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d)Shares, at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), include in such filing any proposed disposition of such the Shares upon receipt by the Company, not less than 10 ten (10) days prior to the proposed filing date, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be person reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter underwriter, if any, for any such said offering advises the Company in writing that the inclusion of such Shares securities in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, thenoffering, such Shares securities shall not nevertheless be included in the Registration Statement, Statement provided that no other shares the Warrantholder and each holder of the Company's Common Stock are Warrants and Shares desiring to have such securities included in the registration Registration Statement agrees in writing, for a period of ninety (90) days following such offering not to sell or otherwise dispose of such securities pursuant to any other piggyback registration rights granted to others. In such Registration Statement, which Registration Statement the event that Shares requested to be included in an offering are not included in accordance with Company shall keep effective for a period of at least nine (9) months following the immediately preceding sentence, any notice given to holders expiration of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c)ninety (90) day period.
(dii) In addition to any Registration Statement pursuant to Section 12(c) hereof, after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the WarrantsShares, and will use reasonable its best efforts at its own expense through its officers, directors, auditors and counsel, in all ways matters necessary or advisable, to cause such Registration Statement to become effective as quickly promptly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock Shares covered by the Request until the earlier of the time that all such shares of Common Stock has securities have been sold or the expiration of 120 ninety (90) days from the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such a Registration Statement under this Section 12(d). The Company shall not be required to effect a registration pursuant to this Section 12(d11(b)(ii) if the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month periodon two occasions.
(ec) All Except as set forth in the last sentence of this paragraph, all fees, disbursements, disbursements and out-of-pocket expenses incurred (other than Warrantholder's brokerage fees and commissions and legal fees of counsel to the Warrantholder, if any) in connection with the filing of any Registration Statement under Section 12(c11) hereof (or obtaining the opinion of counsel and any no-action position of the Commission with respect to sales under Rule 144) and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders any Warrantholder and any holder of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein and other related documents and opinions and no-action letters in such quantities as may be reasonably requested by such holdersthe Warrantholder or holder of Shares. Notwithstanding the foregoing, all costs and expenses of a second Registration Statement filed pursuant to Section 11(b)(ii) shall be borne by the holders of the securities included therein.
(fd) Each holder The Company shall not be required by this Section 11 to file such Registration Statement if, in the opinion of counsel for the Warrantholders and holders of Shares, and the Company (or, should they not agree, in the opinion of another counsel experienced in securities law matters acceptable to counsel for such holders and the Company), the proposed public offering or other transfer as to which such Registration Statement is requested is exempt from applicable federal and state securities laws and would result in all purchasers or transferees obtaining securities which are not "restricted securities," as defined in Rule 144 under the Act.
(e) The Company agrees that until all Shares to be included in have been sold under a Registration Statement or pursuant to this Section 12 agrees Rule 144 under the Act, it will keep current in filing all materials required to reasonably cooperate be filed with the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company Commission in order for to permit the Company holders of such securities to perform its obligations sell the same under this Section 12Rule 144.
(g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to any other registration rights previously granted by the Company.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (New York Health Care Inc)
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant 10.1 The Warrantholder agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise of the Warrants ("Shares"), unless a if no registration statement or post-effective amendment thereto under the Securities Act of 1933(collectively a "Registration Statement") with respect to such disposition is then effective, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant to an exemption unless the Company has received from the Warrantholder an opinion of counsel reasonably satisfactory to the Company that such disposition may be made without registration requirements of all applicable federal and state securities lawsunder the Act.
(b) Each certificate evidencing 10.2 Upon the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise written request of the Warrants shall bear such a legend until such Warrantholder at any time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, in the opinion of legal counsel to the Company, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.
(c) Subject to the next sentence below, beginning on the date that the Warrants are exercised, if the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form S-4 Registration Statement could be used), it shall, at least 30 days prior to such filing, give written notice of such proposed filing to the holders of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d), at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), in such filing any proposed disposition of such Shares upon receipt by the Company, not less than 10 days prior to the proposed filing date, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities ActTermination Date, the Company will have no further obligation agrees to such holders under this Section 12(c) prepare and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such offering advises the Company in writing that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, then, such Shares shall not be included in the Registration Statement, provided that no other shares of the Company's Common Stock are included in the registration pursuant to any other piggyback registration rights granted to others. In the event that Shares requested to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c).
(d) In addition to any Registration Statement pursuant to Section 12(c) hereof, after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company willfile, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense expense, a Registration Statement with the Securities and Exchange Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the WarrantsShares, and will to use reasonable its best efforts at its own expense through its officers, directors, auditors and counsel, in all ways matters necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain keep such effectiveness so as Registration Statement effective for a period of three years (and to permit resale of keep the shares of Common Stock covered by the Request until the earlier of the time that all Prospectus current for such shares of Common Stock has been sold or the expiration of 120 days from period) following the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such Registration Statement under this Section 12(d)thereof. The Company shall not be required to effect a registration file only one Registration Statement pursuant to this Section 12(d) 10.2. Notwithstanding any provision to the contrary, the Company's obligation to file a Registration Statement shall not be satisfied unless and until the Registration Statement is declared effective The Company may include other of its securities in such Registration Statement, unless the underwriter of such offering, if any, reasonably advises the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d)that the inclusion of such other securities will materially and adversely affect the distribution of, a certificate signed by or the Chairman of market for, the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month periodShares.
(e) 10.3 All fees, disbursements, disbursements and out-of-pocket expenses incurred (other than Warrantholder's or holders' of Shares brokerage fees and commissions and legal fees of counsel to the Warrantholders or holders of Shares, if any) in connection with the filing of any a Registration Statement under (and Prospectus) pursuant to Section 12(c) hereof 10.2, including amendments and supplements thereto, and in complying with applicable securities and Blue Sky laws of up to five states designated by the Warrantholder shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders any Warrantholder and any holder of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein and other related documents in such quantities as may be reasonably requested by such holdersthe Warrantholder or holder of Shares.
(f) Each holder of 10.4 The Company shall not be required by this Section 10 to file a Registration Statement or include any Shares to be included in a Registration Statement pursuant to this Section 12 agrees to reasonably cooperate with 10 if, in the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company in order written opinion of counsel for the Company to perform its obligations the proposed sale or other transfer of the Shares is exempt from applicable federal and state securities laws and would result in all purchasers or transferees of such Shares obtaining securities which are not "restricted securities," as defined in Rule 144 under this Section 12the Act.
(g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to any other registration rights previously granted by the Company.
Appears in 1 contract
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant The Warrantholder agrees that prior to making any disposition or transfer of the Warrants, the Shares, the Unit Warrants or shares issuable upon exercise of the Warrants Unit Warrant Stock, other than to persons or entities identified in clauses ("Shares"i) through (v), unless a registration statement under the Securities Act inclusive, of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities lawsSection 1.3, the holder Warrantholder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant if the Company has notified the Warrantholder that in the opinion of counsel reasonably satisfactory to an exemption from the Warrantholder a registration requirements of all applicable federal statement or other notification or post-effective amendment thereto (hereinafter collectively a "Registration Statement") under the Act is required with respect to such disposition and state securities lawsno such Registration Statement has been filed by the Company with, and declared effective, if necessary, by the Securities and Exchange Commission (the "Commission").
(b) Each certificate evidencing The Company shall be obligated to the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise owners of the Warrants, the Shares, the Unit Warrants shall bear such and the Unit Warrant Stock to file a legend until such time Registration Statement as such Shares have been sold pursuant to a registration statement contemplated in subsection follows:
(ci) or (d) below or unlessWhenever during the four-year period beginning on ___________, in the opinion of legal counsel to the Company, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 251997 and ending on ___________, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.
(c) Subject to the next sentence below, beginning on the date that the Warrants are exercised, if the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company Registration Statement (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form S-4 Registration Statement could be used), it shall, at least 30 twenty (20) days prior to such each filing, give written notice of such proposed filing to the holders Warrantholder and each holder of Shares, Unit Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d)Unit Warrant Stock, at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), include in such filing any proposed disposition of such Shares the Shares, Unit Warrants and Unit Warrant Stock upon receipt by the Company, not less than 10 ten (10) days prior to the proposed filing date, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be person reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter underwriter, if any, for any such said offering advises the Company in writing that the inclusion of such Shares securities in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, thenoffering, such Shares securities shall not nevertheless be included in the Registration Statement, Statement provided that no other shares the Warrantholder and each holder of the Company's Common Warrants and Shares, Unit Warrants and Unit Warrant Stock are desiring to have such securities included in the registration Registration Statement agrees in writing, for a period of ninety (90) days following such offering not to sell or otherwise dispose of such securities pursuant to any other piggyback registration rights granted to others. In such Registration Statement, which Registration Statement the event that Shares requested to be included in an offering are not included in accordance with Company shall keep effective for a period of at least nine months following the immediately preceding sentence, any notice given to holders expiration of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c)ninety (90) day period.
(dii) In addition to any Registration Statement pursuant to Section 12(csubparagraph (i) hereofabove, during the four-year period beginning on _______________, 1997 and ending on ________, 2001, the Company, as promptly as practicable (but in any event within sixty (60) days), after written notice upon exercise request (the "Request") by H.J. XXXXXX & XO., INC., or by a person or persons holding (or having the holders right to acquire by virtue of holding the Warrants or Unit Warrants) at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants and Unit Warrants, the Company will, as promptly as practicable (but in any event within 60 days), will prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying Shares, the WarrantsUnit Warrants and the Unit Warrant Stock, and will use reasonable its best efforts at its own expense through its officers, directors, auditors and counsel, in all ways matters necessary or advisable, to cause such Registration Statement to become effective as quickly promptly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Shares, the Unit Warrants and the Unit Warrant Stock covered by the Request until the earlier of the time that all such shares of Common Stock has securities have been sold or the expiration of 120 ninety (90) days from the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such a Registration Statement under this Section 12(d). The Company shall not be required to effect a registration pursuant to this Section 12(d1 l(b)(ii) if the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month periodon two occasions.
(ec) All Except as set forth in the last sentence of this paragraph, all fees, disbursements, disbursements and out-of-pocket expenses incurred (other than Warrantholder's brokerage fees and commissions and legal fees of counsel to the Warrantholder, if any) in connection with the filing of any Registration Statement under Section 12(c11) hereof (or obtaining the opinion of counsel and any no-action position of the Commission with respect to sales under Rule 144) and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders any Warrantholder and any holder of the Shares included in a Registration Statement Shares, Unit Warrants or Unit Warrant Stock with copies of such Registration Statement and the prospectus or offering circular included therein and other related documents and opinions and no-action letters in such quantities as may be reasonably requested by such holdersthe Warrantholder or holder of Shares, Unit Warrants or Unit Warrant Stock. Notwithstanding the foregoing, all costs and expenses of a second Registration Statement filed pursuant to Section 11(b)(ii) shall be borne by the holders of the securities included therein.
(fd) Each holder The Company shall not be required by this Section 11 to file such Registration Statement if, in the opinion of Shares counsel for the Warrantholders and holders of Shares, Unit Warrants and Unit Warrant Stock and the Company (or, should they not agree, in the opinion of another counsel experienced in securities law matters acceptable to be included counsel for such holders and the Company), the proposed public offering or other transfer as to which such Registration Statement is requested is exempt from applicable federal and state securities laws and would result in all purchasers or transferees obtaining securities which are not "restricted securities," as defined in Rule 144 under the Act.
(e) The Company agrees that until all Shares, Unit Warrants and Unit Warrant Stock have been sold under a Registration Statement or pursuant to this Section 12 agrees Rule 144 under the Act, it will keep current in filing all materials required to reasonably cooperate be filed with the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company Commission in order for to permit the Company holders of such securities to perform its obligations sell the same under this Section 12Rule 144.
(g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to any other registration rights previously granted by the Company.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Jubilee Gaming Enterprises Inc)
Restrictions on Transfer Registration Rights. (a) Each holder There shall be no transfers of a Warrant agrees that prior Warrants except as permitted pursuant to making Section 1.3 hereof. If any disposition Warrantholder proposes to sell or otherwise transfer of the Warrants or shares issuable upon exercise of the Warrants ("any Shares"), unless a and if such Shares are not then registered for resale pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder Warrantholder proposing to make such transfer shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition transfer shall be made except pursuant unless the Company shall notify such Warrantholder that in the opinion counsel reasonably satisfactory to an exemption from such Warrantholder, registration under the registration requirements of all applicable federal and state securities lawsAct is not required with respect to such transfer.
(b) Each certificate evidencing Subject to the Warrants provisions set forth in this Section 11, if at any time during the period prior to the Termination Date the Shares are not subject to an effective registration statement under the Act (a "REGISTRATION STATEMENT"), the Company shall bear a legend in substantially be obligated to the 36 following form, Warrantholders and each certificate evidencing the registered holders of the Shares issuable issued upon exercise of the Warrants shall bear such a legend until such time (collectively with the Warrantholders, the "HOLDERS"), as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, in the opinion of legal counsel to the Company, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.follows:
(ci) Subject to Whenever during the next sentence below, five-year period beginning on the date that Commencement Date and ending on the Warrants are exercisedTermination Date, if the Company proposes to file with the Securities and Exchange Commission (the "COMMISSION") a Registration Statement (other than a registration statement with respect to equity securities of the Company on Form S-8 (or other than as form) relating solely to securities issued pursuant to an employee benefit plan plan, or as to a transaction subject to Rule 145 promulgated under the Securities Act registration statement on Form F-4 or for which a Form S-4 Registration Statement could be usedor any successor form thereto), it the Company shall, at least 30 days prior to each such proposed filing, give written notice of such proposed filing (the "PIGGYBACK NOTICE") thereof to the holders of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d), Holders at their respective addresses as they appear appearing on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), include in such filing any proposed disposition Shares as to which written requests (the "PIGGYBACK REQUEST") for such inclusion are received by the Company from Holders not more than 20 days after such Piggyback Notice is mailed to the Holders. The Shares which are the subject of a valid Piggyback Request from Holders are hereinafter referred to as the "PIGGYBACK SHARES." If such Shares upon receipt registration statement relates in whole or in part to an underwritten public offering of the Common Stock by the Company, not less than 10 days prior the right of any Holder to the proposed filing date, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such offering advises the Company in writing that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, then, such Shares shall not be included in the Registration Statement, provided that no other shares of the Company's Common Stock are included in the registration pursuant to any other piggyback registration rights granted to others. In the event that Shares requested to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c).
(d) In addition to any Registration Statement pursuant to Section 12(c) hereof, after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 days from the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such Registration Statement under this Section 12(d). The Company shall not be required to effect a registration pursuant to this Section 12(d11(b) if the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by the Chairman of the Board stating that be conditioned upon such Holder's participation in the good faith judgment of the Board of Directors any underwriting of the Company, it would be seriously detrimental 's public offering. All Holders proposing to the Company and its shareholders for distribute their Piggyback Shares through such registration statement to be effected at such time, in which event the Company underwriting shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period.
(e) All fees, disbursements, and out-of-pocket expenses incurred in connection with the filing of any Registration Statement under Section 12(c) hereof and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein in such quantities as may be reasonably requested by such holders.
(f) Each holder of Shares to be included in a Registration Statement pursuant to this Section 12 agrees to reasonably cooperate together with the Company and to provide other holders of Common Stock participating in such underwriting) enter into an underwriting agreement in customary form with the Company on its request with all information concerning underwriter or underwriters selected for such holder and his Warrants and Shares that may reasonably be requested by the Company in order for the Company to perform its obligations under this Section 12.
(g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to any other registration rights previously granted underwriting by the Company.. In addition, if, after the number of Piggyback Shares is
Appears in 1 contract
Restrictions on Transfer Registration Rights. (a) Each holder There shall be no transfers of a Warrant agrees that prior Warrants except as permitted pursuant to making Section 1.3 hereof. If any disposition Warrantholder proposes to sell or otherwise transfer of the Warrants or shares issuable upon exercise of the Warrants ("any Shares"), unless a and if such Shares are not then registered for resale pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder Warrantholder proposing to make such transfer shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition transfer shall be made except pursuant unless the Company shall notify such Warrantholder that in the opinion counsel reasonably satisfactory to an exemption from such Warrantholder, registration under the registration requirements of all applicable federal and state securities lawsAct is not required with respect to such transfer.
(b) Each certificate evidencing Subject to the Warrants provisions set forth in this Section 11, if at any time during the period prior to the Termination Date the Shares are not subject to an effective registration statement under the Act (a "Registration Statement"), the Company shall bear a legend in substantially be obligated to the 36 following form, Warrantholders and each certificate evidencing the registered holders of the Shares issuable issued upon exercise of the Warrants shall bear such a legend until such time (collectively with the Warrantholders, the "Holders"), as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, in the opinion of legal counsel to the Company, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.follows:
(ci) Subject to Whenever during the next sentence below, five-year period beginning on the date that Commencement Date and ending on the Warrants are exercisedTermination Date, if the Company proposes to file with the Securities and Exchange Commission (the "Commission") a Registration Statement (other than a registration statement with respect to equity securities of the Company on Form S-8 (or other than as form) relating solely to securities issued pursuant to an employee benefit plan plan, or as to a transaction subject to Rule 145 promulgated under the Securities Act registration statement on Form F-4 or for which a Form S-4 Registration Statement could be usedor any successor form thereto), it the Company shall, at least 30 days prior to each such proposed filing, give written notice of such proposed filing (the "Piggyback Notice") thereof to the holders of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d), Holders at their respective addresses as they appear appearing on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), include in such filing any proposed disposition Shares as to which written requests (the "Piggyback Request") for such inclusion are received by the Company from Holders not more than 20 days after such Piggyback Notice is mailed to the Holders. The Shares which are the subject of a valid Piggyback Request from Holders are hereinafter referred to as the "Piggyback Shares." If such Shares upon receipt registration statement relates in whole or in part to an underwritten public offering of the Common Stock by the Company, not less than 10 days prior the right of any Holder to the proposed filing date, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such offering advises the Company in writing that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, then, such Shares shall not be included in the Registration Statement, provided that no other shares of the Company's Common Stock are included in the registration pursuant to any other piggyback registration rights granted to others. In the event that Shares requested to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c).
(d) In addition to any Registration Statement pursuant to Section 12(c) hereof, after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 days from the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such Registration Statement under this Section 12(d). The Company shall not be required to effect a registration pursuant to this Section 12(d11(b) if the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by the Chairman of the Board stating that be conditioned upon such Holder's participation in the good faith judgment of the Board of Directors any underwriting of the Company, it would be seriously detrimental 's public offering. All Holders proposing to the Company and its shareholders for distribute their Piggyback Shares through such registration statement to be effected at such time, in which event the Company underwriting shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period.
(e) All fees, disbursements, and out-of-pocket expenses incurred in connection with the filing of any Registration Statement under Section 12(c) hereof and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein in such quantities as may be reasonably requested by such holders.
(f) Each holder of Shares to be included in a Registration Statement pursuant to this Section 12 agrees to reasonably cooperate together with the Company and to provide other holders of Common Stock participating in such underwriting) enter into an underwriting agreement in customary form with the Company on its request with all information concerning underwriter or underwriters selected for such holder and his Warrants and Shares that may reasonably be requested by the Company in order for the Company to perform its obligations under this Section 12.
(g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to any other registration rights previously granted underwriting by the Company.. In addition, if, after the number of Piggyback Shares is
Appears in 1 contract
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant The Holder agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise of the Warrants ("Shares"), unless a registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder Holder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant to an exemption from if the registration requirements of all applicable federal and state securities laws.
(b) Each certificate evidencing Company has notified the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise of the Warrants shall bear such a legend until such time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, Holder that in the opinion of legal counsel its counsel, a registration statement or post-effective amendment thereto (hereinafter collectively a "Registration Statement") under the Act is required with respect to such disposition and no such Registration Statement has been filed by the CompanyCompany with, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLDand declared effective by, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIMEthe Securities and Exchange Commission (the "Commission").
(ci) Subject At any time commencing after the closing of the Company's initial public offering of its securities and prior to November 30, 2003, the Company will, as promptly as practicable (but in any event within 60 days), after written request by a person or persons holding (or having the right to acquire by virtue of holding the Warrants) at least 50% of the Shares which have been (or may be) issued upon exercise of all of the Warrants that were issued to the next sentence belowshareholders of XImage upon the acquisition of XImage by ImageWare, beginning on prepare and file at the Company's expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the Shares (but not the Warrants) and will use its best efforts through its officers, directors, auditors and counsel, in all matters necessary or advisable, to cause such Registration Statement to become effective as promptly as practicable and to keep such registration effective for a period of the lesser of 90 days or the date of completion of the distribution described in the Registration Statement; provided, however, that the Warrants are exercisedCompany shall only be obligated to file one such Registration Statement under this Section 9(b)(i).
(ii) Whenever during the period ending on November 30, if 2003, the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company Registration Statement (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form form S-4 Registration Statement could be used), it shall, at least 30 days promptly prior to each such filing, give written notice of such proposed filing to the holders Holder and each holder of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d), at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), include in such filing any proposed disposition of such the Shares (but not the Warrants) upon receipt by the Company, not less than 10 within 20 days prior to the proposed filing dateafter such written notice is given, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be person reasonably necessary to be included in such Registration Statement. Notwithstanding If the aboveregistration for which the Company gives notice is for a registered public offering involving an underwriting, after the Company shall so advise as part of the written notice given pursuant to this Section. In such time as event, the holders right of any Holder or holder of Shares to registration pursuant to Section 9(b)(i) shall have been given two opportunities to include be conditioned upon the participation in such underwriting of the Holder or holder of Shares, and the inclusion of their Shares in a Registration Statement of the Company pursuant underwriting shall be limited to the immediately preceding sentence, and all securities extent provided herein. All Holders or holders of holders who Shares proposing to distribute their Shares through such underwriting shall have requested such inclusion enter into an underwriting agreement in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) customary form with the managing underwriter selected for such underwriting by the Company. Notwithstanding any such offering advises other provision of this Section 9(b), if the Company in writing managing underwriter determines that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment marketing factors require a limitation of the Board number of Directors of the Company, inclusion of the Shares in the registration would shares to be seriously detrimental to the Company, thenunderwritten, such Shares shall not underwriter may limit the amount of securities to be included in the Registration Statementregistration and underwriting by the holders of Company securities exercising "piggyback" registration rights (including the Holder and each holder of Shares). The Company shall so advise all such holders of Company securities exercising "piggyback" registration rights, provided that no other and the number of shares of the Company's Common Stock are such securities that may be included in the registration pursuant and underwriting shall be allocated among all of such holders, in proportion, as nearly as practicable, to any other piggyback registration rights granted to others. In the event that Shares respective amounts of securities requested by such holders to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 such registration statement. Any securities excluded or withdrawn from such registration and Shares hereunder with respect to such offering underwriting shall not be counted against the limitation provided for in the second sentence of this Section 12(c).
transferred prior to one hundred twenty (d120) In addition to any Registration Statement pursuant to Section 12(c) hereof, days after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 days from the effective date of the Registration Statement; providedregistration statement relating thereto, however, or such shorter period of time as the underwriters may require.
(iii) In the event that the Company shall only be obligated to file one any such Registration Statement under this Section 12(d). The Company shall not is utilized for a public offering of any of the Shares to be required to effect a registration received upon exercise of the Warrants pursuant to this Section 12(d) if 9, the Company shall furnish Holder may elect to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by pay the Chairman Exercise Price of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental Warrants to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt out of the request proceeds of the initiating holders; provided that sale of the Shares pursuant to the Registration Statement concurrently with the closing of such right to delay a request shall sale of the Shares. In such event, (1) the Shares will not be exercised issued by the Company until they are sold, and (2) the Shares will not more than once in any twelve (12) month periodbe delivered to the purchaser of such Shares until satisfactory provision is made for paying the Warrant Price to the Company with respect to such Shares.
(ec) All fees, disbursements, disbursements and out-of-pocket expenses incurred (other than the Holder's brokerage fees and commissions and legal fees of counsel to the Holder, if any) in connection with the filing of any Registration Statement statement under Section 12(c9(b) hereof (or obtaining the opinion of counsel and any no-action position of the Commission with respect to sales under Rule 144) and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders any Holder and any holder of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein and other related documents any opinions and no-action letters in such quantities as may be reasonably requested by the Holder or holder of Shares.
(d) The Company shall not be required by this Section 9 to file such holdersRegistration Statement if, in the opinion of counsel for the Holders and holders of Shares and the Company (or, should they not agree, in the opinion of another counsel experienced in securities law matters acceptable to counsel for such holders and the Company), the proposed transfer as to which such Registration Statement is requested is exempt from applicable federal and state securities laws under Rule 144 promulgated under the Act.
(e) The provisions of this Section 9 and Section 10 hereof shall apply to the extent as provided herein if the Company chooses to file an Offering Statement under Regulation A promulgated under the Act.
(f) Each holder of The Company agrees that until all Shares to be included in have been sold under a Registration Statement or pursuant to this Section 12 agrees Rule 144 under the Act, it will use its best efforts to reasonably cooperate keep current in filing all materials required to be filed with the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company Commission in order for to permit the Company holders of such securities to perform its obligations sell the same under this Section 12Rule 144.
(g) The Company shall be entitled, for a reasonable period of time which in no event shall exceed 60 days (i) to postpone the filing of a Registration Statement or any amendment or supplement thereto or to the prospectus relating thereto otherwise required, or (ii) to suspend effectiveness of the Registration Statement, if the Company (a) determines, in its reasonable judgment, that the registration or sale of the Shares would materially interfere with any pending or proposed financing, acquisition, corporate reorganization or other material transaction involving the Company or any of its subsidiaries, and (b) promptly gives those persons exercising their registration right hereunder written notice of such determination.
(h) The Company may require those persons exercising their registration rights provided hereunder to furnish to the Company such information regarding the distribution of such Shares as the Company may from time to time request in writing and such other information as may be legally required in connection with such registration.
(i) At any time when a prospectus relating to a sale of the Shares is required to be delivered under the Act, there occurs an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the Shares, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, then the Company will promptly make available to any Holder any such supplement of amendment. Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in the preceding sentence hereof, such Holder will forthwith discontinue disposition of Shares pursuant to the Registration Statement covering such Shares until the Holder's receipt of the copies of the supplemented or amended prospectus, and, if so directed by the Company, the Holder will deliver to the Company all copies, other than permanent file copies then in the Holder's possession, of the prospectus covering such Shares current at the time of receipt of such notice. If such amendments or supplements are not made by the Company within ten (10) days of such notice by the Company or if in the opinion of counsel to the Holders such amendments or supplements to the prospectus, if made, are insufficient in light of the requirements of the Act and other applicable law, the Holders shall not be deemed to have exercised their demand registration rights pursuant to Section 12(c9(b)(i) and Section 12(d) above are subject to any other registration rights previously granted by the Companyherein.
Appears in 1 contract
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise of the Warrants ("Shares"), unless a registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant to an exemption from the registration requirements of all applicable federal and state securities laws.
(b) Each certificate evidencing the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise of the Warrants shall bear such a legend until such time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, in the opinion of legal counsel to the Company, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.
(c) Subject to the next sentence below, beginning on the date that the Warrants are exercised, if the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form S-4 Registration Statement could be used), it shall, at least 30 days prior to such filing, give written notice of such proposed filing to the holders of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d), at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), in such filing any proposed disposition of such Shares upon receipt by the Company, not less than 10 days prior to the proposed filing date, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such offering advises the Company in writing that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, then, such Shares shall not be included in the Registration Statement, provided that no other shares of the Company's Common Stock are included in the registration pursuant to any other piggyback registration rights granted to others. In the event that Shares requested to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c).
(d) In addition to any Registration Statement pursuant to Section 12(c) hereof, after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 days from the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such Registration Statement under this Section 12(d). The Company shall not be required to effect a registration pursuant to this Section 12(d) if the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period.
(e) All fees, disbursements, and out-of-pocket expenses incurred in connection with the filing of any Registration Statement under Section 12(c) hereof and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein in such quantities as may be reasonably requested by such holders.
(f) Each holder of Shares to be included in a Registration Statement pursuant to this Section 12 agrees to reasonably cooperate with the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company in order for the Company to perform its obligations under this Section 12.
(g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to any other registration rights previously granted by the Company.
Appears in 1 contract
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise of the Warrants ("Shares"), unless a registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant to an exemption from the registration requirements of all applicable federal and state securities laws.
(b) Each certificate evidencing the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise of the Warrants shall bear such a legend until such time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, in the opinion of legal counsel to the Company, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25FEBRUARY 12, 20011998, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.
(c) Subject to the next sentence below, beginning on the date that the Warrants are exercised, if the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form S-4 Registration Statement could be used), it shall, at least 30 days prior to such filing, give written notice of such proposed filing to the holders of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d), at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), in such filing any proposed disposition of such Shares upon receipt by the Company, not less than 10 days prior to the proposed filing date, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such offering advises the Company in writing that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, then, such Shares shall not be included in the Registration Statement, provided that no other shares of the Company's Common Stock are included in the registration pursuant to any other piggyback registration rights granted to others. In the event that Shares requested to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c).
(d) In addition to any Registration Statement pursuant to Section 12(c) hereof, after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 days from the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such Registration Statement under this Section 12(d). The Company shall not be required to effect a registration pursuant to this Section 12(d) if the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period.
(e) All fees, disbursements, and out-of-pocket expenses incurred in connection with the filing of any Registration Statement under Section 12(c) hereof and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein in such quantities as may be reasonably requested by such holders.
(f) Each holder of Shares to be included in a Registration Statement pursuant to this Section 12 agrees to reasonably cooperate with the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company in order for the Company to perform its obligations under this Section 12.
(g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to certain registration rights granted to SunAmerica Life Insurance Company and its assignees pursuant to that certain Amended and Restated Registration Rights Agreement entered into as of June 21, 1996 between the Company and SunAmerica Life Insurance Company. Specifically, the Amended and Restated Registration Rights Agreement entered into as of June 21, 1996 provides that the holders of registrable securities under that agreement shall have the right to have included in any piggyback registration by the Company any registrable securities requested by them to be so included in such piggyback registration prior to the inclusion of any securities requested to be registered by any third parties entitled to any other registration rights, including the registration rights previously granted by the Companyhereunder.
Appears in 1 contract
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise of the Warrants ("Shares"), unless a registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant to an exemption from the registration requirements of all applicable federal and state securities laws, with the Company entitled to receive an opinion of counsel (which counsel shall be Kirkxxxx & Xllix xx such other counsel reasonably satisfactory to the Company) prior to the effectuation of any such disposition or transfer.
(b) Each certificate evidencing the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise of the Warrants shall bear such a legend until such time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, in the opinion of legal counsel to the Company, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 13 OF THE WARRANT AGREEMENT DATED AS OF JULY 25FEBRUARY 9, 20011998, BETWEEN UGLY DUCKLING CORPORATION AND HARRXX XXXST COMPANY OF CALIFORNIA, AS WARRANT AGENT, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.
(c) Subject to the next sentence below, whenever during the one-year period beginning on the each date that the Warrants are exercised, if issued hereunder become exercisable the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form S-4 Registration Statement could be used), it shall, at least 30 days prior to such filing, give written notice of such proposed filing to the holders of Warrants then exercisable and Shares which bear a legend as contemplated in Section 12(b13(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d13(c), at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), in such filing any proposed disposition of such Shares upon receipt by the Company, not less than 10 days prior to the proposed filing date, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such offering advises the Company in writing that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, then, such Shares shall not be included in the Registration Statement, provided that no other shares of the Company's Common Stock are included in the registration pursuant to any other piggyback registration rights granted to others. In the event that Shares requested to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c).
(d) In addition to any Registration Statement pursuant to Section 12(c) hereof, after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 days from the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such Registration Statement under this Section 12(d). The Company shall not be required to effect a registration pursuant to this Section 12(d) if the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period.
(e) All fees, disbursements, and out-of-pocket expenses incurred in connection with the filing of any Registration Statement under Section 12(c) hereof and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein in such quantities as may be reasonably requested by such holders.
(f) Each holder of Shares to be included in a Registration Statement pursuant to this Section 12 agrees to reasonably cooperate with the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company in order for the Company to perform its obligations under this Section 12.
(g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to any other registration rights previously granted by the Company.as
Appears in 1 contract
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant 9.0.1 The Warrantholder agrees that prior to making any disposition or transfer of any of the Warrants or shares issuable securities issued upon exercise of the Warrants ("SharesSecurities"), unless a registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder Warrantholder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant to an exemption from if the registration requirements of all applicable federal and state securities laws.
(b) Each certificate evidencing Company has notified the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise of the Warrants shall bear such a legend until such time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unlessWarrantholder that, in the reasonable opinion of legal counsel to the Company, a registration statement or other notification or post-effective amendment thereto (hereinafter collectively a "Registration Statement") under the Securities Act is required with respect to such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLDdisposition and no such Registration Statement has been filed by the Company with, EXCHANGEDand declared effective, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25if necessary, 2001by, AS THE SAME MAY BE AMENDED FROM TIME TO TIMEthe Securities and Exchange Commission (the "Commission").
(c) Subject 9.0.2 The Company shall be obligated to the next sentence belowowners of the Warrant and the Securities to file a Registration Statement only as follows: Whenever, beginning on during the date that seven-year period following the Warrants are exercisedissuance of the Warrant, if the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company Registration Statement (other than as to securities issued pursuant to an employee benefit plan a registration on Form S-4, S-8 or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form S-4 Registration Statement could be used), other limited purpose form) it shall, at least 30 thirty (30) days prior to such filing, give written notice of such proposed filing to the holders Warrantholder and each known holder of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d)Securities, at their respective addresses as they appear its address appearing on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), include in such filing any proposed disposition of such Shares the Securities upon receipt by the Company, not less than 10 fifteen days prior to the proposed filing date, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such offering advises the Company in writing that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, then, such Shares shall not be included in the Registration Statement, provided that no other shares of the Company's Common Stock are included in the registration pursuant to any other piggyback registration rights granted to others. In the event that Shares requested to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c)disposition.
(d) In addition to any Registration Statement pursuant to Section 12(c) hereof, after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 days from the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such Registration Statement under this Section 12(d). The Company shall not be required to effect a registration pursuant to this Section 12(d) if the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period.
(e) 9.0.3 All fees, disbursements, disbursements and out-of-pocket expenses incurred in connection with the filing of any Registration Statement under paragraph (b) of this Section 12(c) hereof and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any -------- ------- expenses of the Warrantholder or holders of the Warrants or the SharesSecurities, including but not limited to attorneys' fees and discounts and commissions, shall be borne by the Warrantholder or such holders. The Company at its expense will supply the holders Warrantholder and any holder of the Shares included in a Registration Statement Securities being registered thereunder with copies of such Registration Statement and the prospectus or offering circular included therein and other related documents in such quantities as may be reasonably requested by such holdersthe Warrantholder or holder of Securities.
(f) Each 9.0.4 The Company shall not be required by this Section to file such Registration Statement if, in the opinion of counsel for the Warrantholder or holder of Shares Securities reasonably satisfactory to be included the Company, the proposed public offering or other transfer as to which such registration is requested is exempt from applicable federal and state securities registration requirements and would result in a Registration Statement pursuant to this Section 12 agrees to reasonably cooperate with all purchasers or transferees obtaining securities which are not "restricted securities," as defined in Rule 144 under the Securities Act.
9.0.5 The Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company in order for the Company to perform its obligations shall have no obligation under this Section 12to the extent that, with respect to a public offering registration, any underwriter of such public offering reasonably requests that the Securities or a portion thereof be excluded.
(g) 9.0.6 The registration rights provided Company agrees that it will use its best efforts to keep such Registration Statement effective until three months after this Warrant has been exercised in full or has expired, or until any Securities covered thereby may be publicly distributed pursuant to Section 12(c) and Section 12(d) above are subject to any other an exemption from the registration rights previously granted by requirements of the CompanySecurities Act.
Appears in 1 contract
Samples: Stock Purchase Warrant (Roberts Pharmaceutical Corp)
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant The Warrantholder agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise the Shares, including without limitation, to persons or entities identified in clauses (i) through (iv), inclusive, of Section 1.3 hereof, other than pursuant to a registration statement or other notification or post- effective amendment thereto (hereinafter collectively a "Registration Statement") filed by the Warrants Company with, and declared effective, by, the Securities and Exchange Commission (the "SharesCommission"), unless a registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder Warrantholder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; made and shall provide such other information as may reasonably be required by the Company and counsel familiar with securities matters to conclude that no Registration Statement under the Act is required with respect to such disposition, and no such disposition shall be made except pursuant to an exemption from if the registration requirements of all applicable federal and state securities laws.
(b) Each certificate evidencing Company has notified the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise of the Warrants shall bear such a legend until such time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, Warrantholder that in the opinion of legal counsel reasonably satisfactory to the CompanyCompany a Registration Statement under the Act is required with respect to such disposition, and no such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLDRegistration Statement has been filed by the Company with, EXCHANGEDand if necessary, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25declared effective, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIMEby the Commission.
(ci) Subject to Whenever during the next sentence below, four-year period beginning on the date that the Warrants are exercisedDecember 22, if 1999 and ending on December 21, 2003, the Company proposes to file with the Commission a registration statement with respect to equity securities of Registration Statement under the Company Act (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a on Form S-4 Registration Statement could be usedor Form S-8), it shall, at least 30 days prior to each such filing, give written notice of such proposed filing to the holders Warrantholder, and each holder of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d)Shares, at their his or her respective addresses address as they appear it appears on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), include in such filing any proposed disposition of such the Warrants and Shares upon receipt by the CompanyCompany from such holder, not less than 10 15 days prior to the proposed filing date, of a written request therefor setting forth the facts with respect number of Shares proposed to be included in such proposed disposition registration and all other information with respect to the holders of such Shares requested to be included in such filing as shall be person reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such said offering advises the Company in writing that the inclusion of such Shares securities in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, thenoffering, such Shares securities shall not nevertheless be included in the Registration Statement, provided that no other shares the Warrantholder and each holder of the Company's Common Stock are Warrants and Shares, desiring to have such securities included in the registration Registration Statement agrees in writing, for a period of 90 days following such offering, not to sell or otherwise dispose of such securities pursuant to any other piggyback registration rights granted to others. In such Registration Statement, which Registration Statement the event that Shares requested to be included in an offering are not included in accordance with Company shall keep effective for a period of at least nine months following the immediately preceding sentence, any notice given to holders expiration of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c)90-day period.
(dii) In addition to any Registration Statement pursuant to Section 12(csubparagraph (i) hereofabove, during the four-year period beginning on December 22, 1999 and ending on December 21, 2003 the Company will, as promptly as practicable (but in any event within 60 days), after written notice upon exercise request (the "Request") by Cruttenden Xxxx Incorporated, or by a person or persons holding (or having the holders right to acquire by virtue of holding the Warrants) at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the WarrantsWarrants and Shares, and will use reasonable its best efforts at its own expense through its officers, directors, auditors and counsel, in all ways matters necessary or advisable, to cause such Registration Statement to become effective as quickly promptly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock Shares covered by the Request until the earlier of the time that all such shares of Common Stock has Shares have been sold or the expiration of 120 one hundred twenty (120) days from the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such Registration Statement under this Section 12(d11(b)(ii). The Company shall not be required to effect a registration pursuant to this Section 12(d) if the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period.
(ec) All fees, disbursements, disbursements and out-of-pocket expenses incurred (other than Warrantholders' and holders' of Shares brokerage fees and commissions and legal fees of counsel to the Warrantholder and holders of Shares, if any) in connection with the filing of any Registration Statement under Section 12(c11 (b) hereof (or obtaining the opinion of counsel and any no-action position of the Commission with respect to sales under Rule 144) and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders any Warrantholder and any holder of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein and other related documents any opinions and no-action letters in such quantities as may be reasonably requested by the Warrantholder or holder of Shares.
(d) The Company shall not be required by this Section 11 to file such holdersRegistration Statement if, in the opinion of counsel for the Warrantholder and holders of Shares and the Company (or, should they not agree, in the opinion of another counsel experienced in securities law matters acceptable to counsel for such holders and the Company), the proposed public offering or other transfer as to which such Registration Statement is requested is exempt from applicable federal and state securities laws and would result in all purchasers or transferees obtaining securities which are not "restricted securities," as defined in Rule 144 under the Act. This Section 11 shall terminate and be of no further force or effect at the first date as of which all of the Shares then issuable upon exercise of the Warrants may be sold publicly pursuant to Rule 144 during any single 90-day period.
(e) The provisions of this Section 11 and Section 12 hereof shall apply to the extent as provided herein if the Company chooses to file an Offering Statement under Regulation A promulgated under the Act.
(f) Each holder of The Company agrees that until all Shares to be included in have been sold under a Registration Statement or pursuant to this Section 12 agrees Rule 144 under the Act, it will use its best efforts to reasonably cooperate keep current in filing all materials required to be filed with the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company Commission in order for to permit the Company holders of such securities to perform its obligations sell the same under this Section 12Rule 144.
(g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to any other registration rights previously granted by the Company.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Creative Master International Inc)
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant a. The Holder agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise of the Warrants ("Shares"), unless a registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder Holder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant to an exemption from if the registration requirements of all applicable federal and state securities laws.
(b) Each certificate evidencing Company has notified the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise of the Warrants shall bear such a legend until such time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, Holder that in the opinion of legal counsel reasonably satisfactory to the CompanyHolder a registration statement or other notification or post-effective amendment thereto (hereinafter collectively a "Registration Statement") under the Act is required with respect to such disposition and no such Registration Statement has been filed by the Company with, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLDand declared effective, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIMEby the Securities and Exchange Commission.
(ci) Subject At any time commencing after the closing of the Company's initial public offering of its securities and prior to November 30, 2003, the Company will, as promptly as practicable (but in any event within 60 days), after written request by a person or persons holding (or having the right to acquire by virtue of holding the Warrants) at least 50% of the Shares which have been (or may be) issued upon exercise of all of the Warrants that were issued to the next sentence belowshareholders of XImage upon the acquisition of XImage by ImageWare, beginning on prepare and file at the Company's expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the Shares (but not the Warrants) and will use its best efforts through its officers, directors, auditors and counsel, in all matters necessary or advisable, to cause such Registration Statement to become effective as promptly as practicable and to keep such registration effective for a period of the lesser of 90 days or the date of completion of the distribution described in the Registration Statement; provided, however, that the Warrants are exercisedCompany shall only be obligated to file one such Registration Statement under this Section 9(b)(i).
(ii) Whenever during the period ending on November 30, if 2003, the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company Registration Statement (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form form S-4 Registration Statement could be used), it shall, at least 30 days promptly prior to each such filing, give written notice of such proposed filing to the holders Holder and each holder of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d), at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), include in such filing any proposed disposition of such the Shares (but not the Warrants) upon receipt by the Company, not less than 10 within 20 days prior to the proposed filing dateafter such written notice is given, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be person reasonably necessary to be included in such Registration Statement. Notwithstanding If the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of registration for which the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such gives notice is for a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Actpublic offering involving an underwriting, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such offering advises the Company in writing that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment shall so advise as part of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, then, such Shares shall not be included in the Registration Statement, provided that no other shares of the Company's Common Stock are included in the registration pursuant to any other piggyback registration rights granted to others. In the event that Shares requested to be included in an offering are not included in accordance with the immediately preceding sentence, any written notice given to holders of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c).
(d) In addition to any Registration Statement pursuant to Section 12(c) hereof, after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 days from the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such Registration Statement under this Section 12(d). The Company shall not be required to effect a registration pursuant to this Section 12(d) if the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d)Section. In such event, a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period.
(e) All fees, disbursements, and out-of-pocket expenses incurred in connection with the filing of any Registration Statement under Section 12(c) hereof and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants Holder or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein in such quantities as may be reasonably requested by such holders.
(f) Each holder of Shares to be included in a Registration Statement pursuant to this Section 12 agrees to reasonably cooperate with the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company in order for the Company to perform its obligations under this Section 12.
(g) The registration rights provided pursuant to Section 12(c9(b)(i) shall be conditioned upon the participation in such underwriting of the Holder or holder of Shares, and Section 12(d) above are subject the inclusion of their Shares in the underwriting shall be limited to any other registration rights previously granted by the Company.extent provided
Appears in 1 contract
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant The Warrantholder agrees that prior to making any disposition or transfer of any of the Warrants or shares issuable upon exercise of the Warrants ("Shares"), unless a registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder Warrantholder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant to an exemption effective registration statement or in a transaction exempt from the registration requirements of all applicable federal the Act, or if the Company has notified the Warrantholder that, in the reasonable opinion of counsel to the Company, a registration statement or other notification or post-effective amendment thereto (hereinafter collectively a "Registration Statement") under the Securities Act is required with respect to such disposition and state securities lawsno such Registration Statement has been filed by the Company with, and declared effective, if necessary, by, the Securities and Exchange Commission (the "Commission").
(b) Each certificate evidencing The Company shall be obligated to the Warrants shall bear a legend in substantially Warrantholder and the 36 following form, and each certificate evidencing owner of the Shares issuable issued upon exercise of the Warrants shall bear such Warrant (the "Holder") to file a legend until such time Registration Statement only as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, in the opinion of legal counsel to the Company, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.follows:
(ci) Subject to Whenever, during the next sentence belowseven-year period following the issuance of the Warrant, beginning on the date that the Warrants are exercised, if the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company Registration Statement (other than as to securities issued pursuant to an employee benefit plan a registration on Form X-0, X-0 or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form S-4 Registration Statement could be used), other limited purpose form) it shall, at least 30 thirty (30) days prior to such filing, give written notice of such proposed filing to the holders of Warrants Warrantholder and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d)each Holder, at their respective addresses as they appear its address appearing on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), include in such filing any proposed disposition of such the securities issuable upon conversion of the Shares upon receipt by the Company, not less than 10 fifteen days prior to the proposed filing date, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such offering advises the Company in writing that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, then, such Shares shall not be included in the Registration Statement, provided that no other shares of the Company's Common Stock are included in the registration pursuant to any other piggyback registration rights granted to others. In the event that Shares requested to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c)disposition.
(d) In addition to any Registration Statement pursuant to Section 12(c) hereof, after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the Warrants, and will use reasonable efforts at its own expense through its officers, directors, auditors and counsel, in all ways necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock covered by the Request until the earlier of the time that all such shares of Common Stock has been sold or the expiration of 120 days from the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such Registration Statement under this Section 12(d). The Company shall not be required to effect a registration pursuant to this Section 12(d) if the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period.
(ec) All fees, disbursements, disbursements and out-of-pocket expenses incurred in connection with the filing of any Registration Statement under Paragraph (b) of Section 12(c) hereof 10 and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants Warrantholder or the Shares-------- ------- Holders, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holdersthe Warrantholder and Holders. The Company at its expense will supply the holders of the Shares included in a Registration Statement Warrantholder and any Holder with copies of such Registration Statement and the prospectus or offering circular included therein and other related documents in such quantities as may be reasonably requested by such holdersthe Warrantholder or Holder.
(fd) Each holder The Company shall not be obligated to comply with the provisions of this Section 10 if the Common Stock or other securities issuable upon conversion of the Shares to have been registered for resale under the Act, or such Common Stock or other securities may be included in a Registration Statement sold pursuant to this Section 12 agrees to reasonably cooperate with an applicable exemption from the registration requirements of the Act.
(e) The Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company in order for the Company to perform its obligations shall have no obligation under this Section 1210 to the extent that, with respect to an underwritten public offering registration, the managing underwriter of such public offering reasonably requests that the Shares or a portion thereof be excluded; and notwithstanding the use of the term "Shares" in this Section 10, the Company shall have no obligation to register shares of its 5% Convertible Preferred Stock but shall be obligated to register the shares of Common Stock issuable upon conversion of such 5% Convertible Preferred Stock.
(g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to any other registration rights previously granted by the Company.
Appears in 1 contract
Samples: Preferred Stock Warrant Agreement (Koo Koo Roo Inc/De)
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant 10.1 The Warrantholder agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise of the Warrants ("Shares"), unless a if no registration statement or post-effective amendment thereto under the Securities Act of 1933(collectively a "Registration Statement") with respect to such disposition is then effective, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; and no such disposition shall be made except pursuant to an exemption unless the Company has received from the Warrantholder an opinion of counsel reasonably satisfactory to the Company that such disposition may be made without registration requirements of all applicable federal and state securities lawsunder the Act.
(b) Each certificate evidencing 10.2 Upon the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise written request of the Warrants shall bear such a legend until such Warrantholder at any time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, in the opinion of legal counsel to the Company, such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.
(c) Subject to the next sentence below, beginning on the date that the Warrants are exercised, if the Company proposes to file with the Commission a registration statement with respect to equity securities of the Company (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a Form S-4 Registration Statement could be used), it shall, at least 30 days prior to such filing, give written notice of such proposed filing to the holders of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d), at their respective addresses as they appear on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), in such filing any proposed disposition of such Shares upon receipt by the Company, not less than 10 days prior to the proposed filing date, of a request therefor setting forth the facts with respect to such proposed disposition and all other information with respect to the holders of such Shares requested to be included in such filing as shall be reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities ActTermination Date, the Company will have no further obligation agrees to such holders under this Section 12(c) prepare and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such offering advises the Company in writing that the inclusion of such Shares in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, then, such Shares shall not be included in the Registration Statement, provided that no other shares of the Company's Common Stock are included in the registration pursuant to any other piggyback registration rights granted to others. In the event that Shares requested to be included in an offering are not included in accordance with the immediately preceding sentence, any notice given to holders of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c).
(d) In addition to any Registration Statement pursuant to Section 12(c) hereof, after written notice upon exercise (the "Request") by the holders of at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company willfile, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense expense, a Registration Statement with the Securities and Exchange Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the WarrantsShares, and will to use reasonable its best efforts at its own expense through its officers, directors, auditors and counsel, in all ways matters necessary or advisable, to cause such Registration Statement to become effective as quickly as practicable and to maintain keep such effectiveness so as Registration Statement effective for a period of three years (and to permit resale of keep the shares of Common Stock covered by the Request until the earlier of the time that all Prospectus current for such shares of Common Stock has been sold or the expiration of 120 days from period) following the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such Registration Statement under this Section 12(d)thereof. The Company shall not be required to effect a registration file only one Registration Statement pursuant to this Section 12(d) 0. Notwithstanding any provision to the contrary, the Company's obligation to file a Registration Statement shall not be satisfied unless and until the Registration Statement is declared effective by the Securities and Exchange Commission. The registration rights of the Warrantholder shall not be extinguished if the Registration Statement is withdrawn for any reason. The Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d)may include other of its securities in such Registration Statement, a certificate signed by unless the Chairman underwriter of the Board stating that in the good faith judgment of the Board of Directors of the Companysuch offering, it would be seriously detrimental to if any, reasonably advises the Company that the inclusion of such other securities will materially and its shareholders for such registration statement to be effected at such timeadversely affect the distribution of, in which event or the Company shall have market for, the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month periodShares.
(e) 10.3 All fees, disbursements, disbursements and out-of-pocket expenses incurred (other than Warrantholder's or holders' of Shares brokerage fees and commissions and legal fees of counsel to the Warrantholders or holders of Shares, if any) in connection with the filing of any a Registration Statement under (and Prospectus) pursuant to Section 12(c) hereof 0, including amendments and supplements thereto, and in complying with applicable securities and Blue Sky laws of up to five states designated by the Warrantholder shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein in such quantities as may be reasonably requested by such holders.
(f) Each holder of Shares to be included in a Registration Statement pursuant to this Section 12 agrees to reasonably cooperate with the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company in order for the Company to perform its obligations under this Section 12.
(g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to any other registration rights previously granted by the Company.
Appears in 1 contract
Restrictions on Transfer Registration Rights. (a) Each holder of a Warrant The Warrantholder agrees that prior to making any disposition or transfer of the Warrants or shares issuable upon exercise the Shares, including without limitation, to persons or entities identified in clauses (i) through (iv), inclusive, of Section 1.3 hereof, other than pursuant to a registration statement or other notification or post- effective amendment thereto (hereinafter collectively a "Registration Statement") filed by the Warrants Company with, and declared effective, by, the Securities and Exchange Commission (the "SharesCommission"), unless a registration statement under the Securities Act of 1933, as amended (the "Securities Act"), is in effect with regard thereto and the disposition may be effected in accordance therewith and with applicable state securities laws, the holder Warrantholder shall give written notice to the Company describing briefly the manner in which any such proposed disposition or transfer is to be made; made and shall provide such other information as may reasonably be required by the Company and counsel familiar with securities matters to conclude that no Registration Statement under the Act is required with respect to such disposition, and no such disposition shall be made except pursuant to an exemption from if the registration requirements of all applicable federal and state securities laws.
(b) Each certificate evidencing Company has notified the Warrants shall bear a legend in substantially the 36 following form, and each certificate evidencing Shares issuable upon exercise of the Warrants shall bear such a legend until such time as such Shares have been sold pursuant to a registration statement contemplated in subsection (c) or (d) below or unless, Warrantholder that in the opinion of legal counsel reasonably satisfactory to the CompanyCompany a Registration Statement under the Act is required with respect to such disposition, and no such legend is not required in order to establish compliance with any provisions of applicable security laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLDRegistration Statement has been filed by the Company with, EXCHANGEDand if necessary, HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT IN COMPLIANCE WITH SECTION 12 OF THE WARRANT AGREEMENT DATED AS OF JULY 25declared effective, 2001, AS THE SAME MAY BE AMENDED FROM TIME TO TIMEby the Commission.
(ci) Subject to Whenever during the next sentence below, four-year period beginning on the date that the Warrants are exercised____________, if 1999 and ending on ______________, 2003, the Company proposes to file with the Commission a registration statement with respect to equity securities of Registration Statement under the Company Act (other than as to securities issued pursuant to an employee benefit plan or as to a transaction subject to Rule 145 promulgated under the Securities Act or for which a on Form S-4 Registration Statement could be usedor Form S-8), it shall, at least 30 days prior to each such filing, give written notice of such proposed filing to the holders Warrantholder, and each holder of Warrants and Shares which bear a legend as contemplated in Section 12(b) above and which shall not have previously been included in a registration statement filed under this Section 12(c) or Section 12(d)Shares, at their his or her respective addresses address as they appear it appears on the records of the Company or the Company, and shall offer to include and shall include, subject to the provisions of this Section 12(c), include in such filing any proposed disposition of such the Warrants and Shares upon receipt by the CompanyCompany from such holder, not less than 10 15 days prior to the proposed filing date, of a written request therefor setting forth the facts with respect number of Shares proposed to be included in such proposed disposition registration and all other information with respect to the holders of such Shares requested to be included in such filing as shall be person reasonably necessary to be included in such Registration Statement. Notwithstanding the above, after such time as the holders shall have been given two opportunities to include their Shares in a Registration Statement of the Company pursuant to the immediately preceding sentence, and all securities of holders who shall have requested such inclusion in accordance herewith and who have not withdrawn such request prior to the filing of such Registration Statement have been included in such a Registration Statement which shall have become effective and such securities shall have been effectively registered under the Securities Act, the Company will have no further obligation to such holders under this Section 12(c) and the Shares of such holders that have not been included previously in a Registration Statement under this Section 12(c) will have no further registration rights under Section 12(c) of this Agreement. In the event that (i) the managing underwriter for any such said offering advises the Company in writing that the inclusion of such Shares securities in the offering would be detrimental to the offering or (ii) in the event that there is no managing underwriter, if, in the good faith judgment of the Board of Directors of the Company, inclusion of the Shares in the registration would be seriously detrimental to the Company, thenoffering, such Shares securities shall not nevertheless be included in the Registration Statement, provided that no other shares the Warrantholder and each holder of the Company's Common Stock are Warrants and Shares, desiring to have such securities included in the registration Registration Statement agrees in writing, for a period of 90 days following such offering, not to sell or otherwise dispose of such securities pursuant to any other piggyback registration rights granted to others. In such Registration Statement, which Registration Statement the event that Shares requested to be included in an offering are not included in accordance with Company shall keep effective for a period of at least nine months following the immediately preceding sentence, any notice given to holders expiration of Warrants 37 and Shares hereunder with respect to such offering shall not be counted against the limitation provided for in the second sentence of this Section 12(c)90-day period.
(dii) In addition to any Registration Statement pursuant to Section 12(csubparagraph (i) hereofabove, during the four- year period beginning on __________, 1999 and ending on _____________, 2003 the Company will, as promptly as practicable (but in any event within 60 days), after written notice upon exercise request (the "Request") by Cruttenden Xxxx Incorporated, or by a person or persons holding (or having the holders right to acquire by virtue of holding the Warrants) at least 50% of the shares of Common Stock which have been (or may be) issued upon exercise of the Warrants, the Company will, as promptly as practicable (but in any event within 60 days), prepare and file at its own expense a Registration Statement with the Commission and appropriate Blue Sky authorities sufficient to permit the public offering of the shares of Common Stock underlying the WarrantsWarrants and Shares, and will use reasonable its best efforts at its own expense through its officers, directors, auditors and counsel, in all ways matters necessary or advisable, to cause such Registration Statement to become effective as quickly promptly as practicable and to maintain such effectiveness so as to permit resale of the shares of Common Stock Shares covered by the Request until the earlier of the time that all such shares of Common Stock has Shares have been sold or the expiration of 120 one hundred twenty (120) days from the effective date of the Registration Statement; provided, however, that the Company shall only be obligated to file one such Registration Statement under this Section 12(d11(b)(ii). The Company shall not be required to effect a registration pursuant to this Section 12(d) if the Company shall furnish to holders requesting a registration statement pursuant to this Section 12(d), a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating holders; provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period.
(ec) All fees, disbursements, disbursements and out-of-pocket expenses incurred (other than Warrantholders' and holders' of Shares brokerage fees and commissions and legal fees of counsel to the Warrantholder and holders of Shares, if any) in connection with the filing of any Registration Statement under Section 12(c11 (b) hereof (or obtaining the opinion of counsel and any no-action position of the Commission with respect to sales under Rule 144) and in complying with applicable securities and Blue Sky laws shall be borne by the Company, provided, however, that any expenses of the holders of the Warrants or the Shares, including but not limited to attorneys' fees and discounts and commissions, shall be borne by such holders. The Company at its expense will supply the holders any Warrantholder and any holder of the Shares included in a Registration Statement with copies of such Registration Statement and the prospectus or offering circular included therein and other related documents any opinions and no-action letters in such quantities as may be reasonably requested by the Warrantholder or holder of Shares.
(d) The Company shall not be required by this Section 11 to file such holdersRegistration Statement if, in the opinion of counsel for the Warrantholder and holders of Shares and the Company (or, should they not agree, in the opinion of another counsel experienced in securities law matters acceptable to counsel for such holders and the Company), the proposed public offering or other transfer as to which such Registration Statement is requested is exempt from applicable federal and state securities laws and would result in all purchasers or transferees obtaining securities which are not "restricted securities," as defined in Rule 144 under the Act. This Section 11 shall terminate and be of no further force or effect at the first date as of which all of the Shares then issuable upon exercise of the Warrants may be sold publicly pursuant to Rule 144 during any single 90-day period.
(e) The provisions of this Section 11 and Section 12 hereof shall apply to the extent as provided herein if the Company chooses to file an Offering Statement under Regulation A promulgated under the Act.
(f) Each holder of The Company agrees that until all Shares to be included in have been sold under a Registration Statement or pursuant to this Section 12 agrees Rule 144 under the Act, it will use its best efforts to reasonably cooperate keep current in filing all materials required to be filed with the Company and to provide the Company on its request with all information concerning such holder and his Warrants and Shares that may reasonably be requested by the Company Commission in order for to permit the Company holders of such securities to perform its obligations sell the same under this Section 12Rule 144.
(g) The registration rights provided pursuant to Section 12(c) and Section 12(d) above are subject to any other registration rights previously granted by the Company.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Creative Master International Inc)
