Securities Act Registration. (a) Seller shall, at Seller's expense, register under the Securities Act the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants (collectively, the "Registrable Securities") and in that connection shall file, by no later than February 22, 2000 (the "Filing Date"), a registration statement with respect to the Registrable Securities with the SEC (the "Registration Statement"). Seller shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event on or prior the that date which is forty (40) days from the Filing Date (the "Effectiveness Date"). The number of shares of Common Stock included in the Registration Statement shall at all times be at least equal to 100% of the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants, and shall include any additional Registrable Securities issuable to Purchaser in connection with the First Closing which were not included on the registration statements filed in connection with the First Closing, without regard to any limitation on Purchaser's ability to convert the Shares or exercise the Warrants. Notice of effectiveness of the Registration Statement shall be furnished promptly to Purchaser. Seller shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement and from time to time will amend or supplement such Registration Statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act to permit the sale of the Registrable Securities by Purchaser. Seller shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement with respect to the Registrable Securities until all of the Registrable Shares have been sold by Purchaser pursuant thereto or such date as all of the Registrable Securities may be sold by Purchaser without registration. (b) As a condition to the inclusion of the Registrable Securities in the Registration Statement, Purchaser will furnish to Seller such information with respect to Purchaser as is required to be disclosed in the Registration Statement (and the prospectus included therein) by the applicable rules, regulations and guidelines of the SEC. (c) In connection with the registration of Registrable Securities under the Securities Act, Seller shall: (i) prepare and file with the SEC a Registration Statement on the appropriate form with respect to such Registrable Securities and use its commercially reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after such filing; (ii) prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) to the Registration Statement covering such Registrable Securities and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement until such time as all of the Registrable Securities registered thereunder have been disposed of in accordance with the intended method of disposition by Purchaser; (iii) furnish to Purchaser of such Registrable Securities registered under the Securities Act such number of copies of a prospectus and preliminary prospectus in conformity with the requirements of the Securities Act, and such other documents as Purchaser may reasonably request, in order to facilitate the public sale or other disposition of such Registrable Securities; (iv) notify Purchaser of such Registrable Securities if, at any time when a prospectus relating to such Registrable Securities is required to be delivered under the Securities Act, any event shall have occurred as a result of which the prospectus then in use with respect to such Registrable Securities would include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made or for any other reason it shall be necessary to amend or supplement such prospectus in order to comply with the Securities Act, and prepare and furnish to Purchaser a reasonable number of copies of a supplement to or an amendment of such prospectus which will correct such statement or omission or effect such compliance; (v) use its commercially reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as Purchaser shall reasonably request, to keep such registrations and qualifications in effect for so long as the Registration Statement referred to in paragraph 6.1(c)(i) above remains in effect, and to do any and all other acts and things which may be necessary or desirable to enable Purchaser to consummate the public sale or other disposition in each such jurisdiction of such Registrable Securities owned by Purchaser; provided, however, that Seller will not be required to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) or (B) consent to general service of process in any such jurisdiction; (vi) keep the Purchaser informed of Seller's best estimate of the earliest date on which such Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser of the following: (A) when such Registration Statement or any post-effective amendment or supplement thereto becomes effective or is approved, (B) of the issuance by any competent authority of any stop order suspending the effectiveness or qualification of such Registration Statement or the prospectus then in use or the initiation or threat of any proceeding for that purpose, and (C) of the suspension of the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction; (vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants as shall be necessary to enable them to conduct a reasonable investigation within the meaning of the Securities Act; and (viii) pay all costs and expenses incident to the performance and compliance by Seller with the provisions of this Section 6.1, including without limitation, (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitation, the entire expense of any special audits required by the rules and regulations of the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall (i) not later that the third business day following the Closing prepare and file with Nasdaq an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Closing necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities exchange or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchange. (d) If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Date or (B) declared effective by the SEC on or before the Effectiveness Date, (ii) on any day after the Registration Statement has been declared effective by the SEC (A) sales of the Registrable Securities required to be included on the Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Shares held by Purchaser and (II) $100, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the SEC; provided, however, that there shall be excluded from such period any delays which are solely attributable to changes required by Purchaser in the Registration Statement with respect to information relating to Purchaser, (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Amendment) of the Shares and the Exercise Price (as defined in the Warrant Agreement) shall be decreased 2% on the date of such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser in cash on the last business day of each month during which an Event has occurred and is continuing. In the event Seller fails to make a Registration Delay Payment in a timely manner, such Registration Delay Payment shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in full. (i) Seller will indemnify and hold harmless Purchaser and each person, if any, who Controls (as defined below) Purchaser from and against any and all losses, claims, damages, liabilities and legal and other expenses (including costs of investigation) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Act, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made, except to the extent that such losses, claims, damages, liabilities or expenses are caused by any such untrue statement or omission or alleged untrue statement or omission included in reliance upon and in conformity with information furnished to Seller in writing by such seller expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) below, a person "Controls" another person if such first person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such second person, whether through the ownership of voting securities, by contract, or otherwise. (ii) It shall be a condition to the obligation of Seller to effect a registration of Registrable Securities under the Securities Act pursuant hereto that Purchaser indemnify and hold harmless Seller and each person, if any, who Controls Seller to the same extent as the indemnity from Seller in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller in writing by Purchaser expressly for use in the Registration Statement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto; provided, however, that in the absence of fraud the aggregate amount of claims for which Purchaser may be liable under this paragraph 6.1(e)(ii) shall not exceed the Purchase Price paid by Purchaser for the Securities. (iii) In case any claim shall be made or any proceeding (including any governmental investigation) shall be instituted involving any indemnified party in respect of which indemnity may be sought pursuant to this paragraph (e), such indemnified party shall promptly notify the indemnifying party in writing of the same; provided that failure to notify the indemnifying party shall not relieve it from any liability it may have to an indemnified party otherwise than under this paragraph (e). The indemnifying party, upon request of the indemnified party or parties, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaid, (B) the indemnifying party and such indemnified party shall have mutually agreed to the retention of such counsel or (C) representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate in the opinion of counsel to such indemnified party due to actual or potential conflicts of interest between such indemnified party and any other party represented by such counsel in such proceeding; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
Appears in 2 contracts
Samples: Preferred Stock Purchase Agreement (Chromatics Color Sciences International Inc), Preferred Stock Purchase Agreement (Chromatics Color Sciences International Inc)
Securities Act Registration. (a) Seller shall, at Seller's expense, 3.1. The Company shall use its best efforts to register under the Securities Act Act, at the Company's expense, all of the shares of Common Stock issuable upon the conversion of the Shares Debenture and upon exercise of the Warrants Warrant (collectively, the "Registrable SecuritiesShares") by October 31, 1996 and in that connection shall file, by no later than February 22, 2000 (the "Filing Date"), file a registration statement with respect to the Registrable Securities with the SEC Shares (the "Registration Statement"). Seller shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under ) with the Securities Act as promptly as possible after the filing thereof, but in any event on or prior the that date which is forty (40) days from the Filing Date and Exchange Commission (the "Effectiveness DateSEC"). The number of shares of Common Stock included in the Registration Statement shall at all times be at least equal to 100% of the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants) on or before August 30, and shall include any additional Registrable Securities issuable to Purchaser in connection with the First Closing which were not included on the registration statements filed in connection with the First Closing, without regard to any limitation on Purchaser's ability to convert the Shares or exercise the Warrants1996. Notice of effectiveness of the Registration Statement shall be furnished promptly to Purchaserthe Subscriber. Seller The Company shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement and from time to time will amend or supplement such Registration Statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act to permit the sale of the Registrable Securities by PurchaserAct. Seller shall use its commercially reasonable best efforts to maintain the The effectiveness of the Registration Statement shall be maintained with respect to the Registrable Securities Shares until all the later to occur of the Registrable Shares have been sold by Purchaser pursuant thereto second anniversary of the Closing Date or such date as all of the Registrable Securities Shares may be sold by Purchaser during any one period of three (3) consecutive months pursuant to Rule 144 under the Securities Act or otherwise without registration.
(b) As a condition to 3.2. In the inclusion event that the Company registers under the Securities Act any of the Registrable Shares held by the Subscriber, the Company shall indemnify and hold harmless the Subscriber and each underwriter of such shares (including any broker or dealer through whom such of the shares may be sold) and each person, if any, who controls the Subscriber or any such underwriter within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") from and against any and all losses, claims, damages, expenses or liabilities, joint or several, to which they or any of them become subject under the Securities Act or the Exchange Act or otherwise, and, except as hereinafter provided, shall reimburse the Subscriber and each of the underwriters and each such controlling person, if any, for any legal or other expenses reasonably incurred by them or any of them in connection with investigating or defending any actions whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, Purchaser will furnish or in the prospectus (or the Registration Statement or prospectus as from time to Seller such information with respect time amended or supplemented by the Company) or arise out of or are based upon the omission or alleged omission to Purchaser as is state therein a material fact required to be disclosed stated therein or necessary in order to make the statements therein not misleading, unless such untrue statement or omission was made in such Registration Statement or prospectus in reliance upon and in conformity with information furnished in writing to the Company in connection therewith by the Subscriber (insofar as indemnification of the Subscriber is concerned) or any underwriter (insofar as indemnification of any such underwriter is concerned) relating thereto expressly for use therein. Promptly after receipt by the Subscriber or any underwriter or any person controlling any of them, as the case may be, of notice of a claim to which the foregoing indemnification applies, the Subscriber or such other person shall notify the Company in writing of the commencement thereof, and, subject to the provisions hereinafter stated, the Company shall assume the defense of such action (including the employment of counsel, who shall be counsel satisfactory to the Subscriber or such underwriter or controlling person, as the case may be, and the payment of expenses) insofar as such action shall relate to any alleged liability in respect of which indemnity may be sought against the Company. The Subscriber or any underwriter or any such controlling person shall have the right to employ separate counsel in any such action and to participate in the Registration Statement defense thereof but the fees and expenses of such counsel shall not be at the expense of the Company unless: (i) the employment of such counsel has been specifically authorized by the Company, (ii) the Company has failed to assume the defense and employ counsel, or (iii) the named parties of any such action, suit or proceeding (including any impleaded parties) include both the person or persons seeking indemnification (the "indemnified person") and the prospectus included therein) Company and such indemnified person shall have been advised by its counsel that representation of the indemnified person and the Company by the same counsel would be inappropriate under applicable rulesstandards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Company shall not have the right to assume the defense of such action, regulations suit or proceeding on behalf of such indemnified person). The Company shall not be liable to indemnify any person for any settlement by such person of any such action effected without the Company's consent.
3.3. The Subscriber shall indemnify the Company, its officers and guidelines directors and each person, if any, who controls the Company within the meaning of Section 15 of the SEC.
(cSecurities Act or Section 20(a) In connection with of the registration Exchange Act, against all losses, claims, damages, expenses or liabilities or actions to which they or any of Registrable Securities them become subject under the Securities ActAct or the Exchange Act or otherwise, Seller shall:
(i) prepare and file shall reimburse the Company, its officers and directors and each such controlling person, if any, for any legal or other expenses reasonably incurred by them or any of them in connection with investigating or defending any actions whether or not resulting in any liability, insofar as such losses, claims damages, expenses, liabilities or actions arise out of or are based upon any information relating to the SEC a Registration Statement Subscriber furnished by or on behalf of the appropriate form with respect to such Registrable Securities and use its commercially reasonable best efforts to cause Subscriber in writing specifically for inclusion in such Registration Statement Statement. Notwithstanding the above, the liability of the Subscriber under this Section 3.3 shall not exceed the proceeds (net of underwriting discounts or commissions) received by the Subscriber upon the sale of the Registrable Shares.
3.4. Any losses, claims, damages, liabilities and reasonable expenses for which an indemnified party is entitled to become effective indemnification under Sections 3.2 and 3.3 of this Agreement shall be paid by the indemnifying party to the indemnified party as soon as practicable after such filing;losses, claims, damages, liabilities and expenses are incurred.
(ii) 3.5. The Company shall prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) to the Registration Statement covering such Registrable Securities Statement, and the prospectus used in connection therewith as with such Registration Statement as, in the opinion of the counsel to the Company, may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities securities covered by such Registration Statement until such time as all of the Registrable Securities registered thereunder have been disposed of in accordance with the intended method of disposition by Purchaser;Statement.
(iii) 3.6. The Company shall furnish to Purchaser of the Subscriber such Registrable Securities registered under the Securities Act such number numbers of copies of a prospectus and preliminary prospectus in conformity with the requirements of the Securities Act, and such other documents as Purchaser may reasonably request, be requested in order to facilitate the public sale or other disposition of the Registrable Shares owned by the Subscriber.
3.7. The Company shall use its best efforts to register and qualify the securities covered by such Registrable Securities;
(iv) notify Purchaser Registration Statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Subscriber; provided, however, that the Company shall not be required in connection therewith, or as a condition thereto, to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act.
3.8. The Company shall notify each holder of Registrable Securities if, Shares covered by such Registration Statement at any time when a prospectus relating to such Registrable Securities thereto is required to be delivered under the Securities Act, Act and of the happening of any event shall have occurred as a result of which the prospectus included in such Registration Statement, as then in use with respect to such Registrable Securities would include effect, includes an untrue statement of a material fact or omit omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which made or then existing.
3.9. The Company shall provide a transfer agent and registrar for any other reason it shall all Registrable Shares to be necessary to amend or supplement such prospectus in order to comply with the Securities Act, registered hereunder and prepare and furnish to Purchaser a reasonable CUSIP number of copies of a supplement to or an amendment all Registrable Shares, in each case not later than the effective date of such prospectus which will correct such statement or omission or effect such compliance;
(v) use its commercially reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as Purchaser shall reasonably request, to keep such registrations and qualifications in effect for so long as the Registration Statement referred to in paragraph 6.1(c)(i) above remains in effect, and to do any and all other acts and things which may be necessary or desirable to enable Purchaser to consummate the public sale or other disposition in each such jurisdiction of such Registrable Securities owned by Purchaser; provided, however, that Seller will not be required to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) or (B) consent to general service of process in any such jurisdiction;
(vi) keep the Purchaser informed of Seller's best estimate of the earliest date on which such Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser of the following: (A) when such Registration Statement or any post-effective amendment or supplement thereto becomes effective or is approved, (B) of the issuance by any competent authority of any stop order suspending the effectiveness or qualification of such Registration Statement or the prospectus then in use or the initiation or threat of any proceeding for that purpose, and (C) of the suspension of the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction;
(vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants as shall be necessary to enable them to conduct a reasonable investigation within the meaning of the Securities Act; and
(viii) pay all costs and expenses incident to the performance and compliance by Seller with the provisions of this Section 6.1, including without limitation, (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitation, the entire expense of any special audits required by the rules and regulations of the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall (i) not later that the third business day following the Closing prepare and file with Nasdaq an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Closing necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities exchange or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchangeregistration.
(d) If (i) 3.10. In the event the Registration Statement is not (A) filed with the SEC on or before the Filing Date August 30, 1996, or (B) is not declared effective by the SEC on or before October 31, 1996, the Effectiveness DateCompany shall, (ii) on any day after the for each month or portion thereof that said Registration Statement has been is not filed or declared effective by effective, as the SEC case may be, in addition to the six percent (A6%) sales of the Registrable Securities required to be included on the Registration Statement cannot be made interest otherwise payable pursuant to the Registration Statement (includingterms of the Debenture, without limitation, because of pay the Subscriber a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") premium equal to two one and one half percent (21.5%) of the product of (I) the number of Shares held by Purchaser and (II) $100, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end outstanding principal amount of the Effectiveness Date and prior Debenture, payable monthly, commencing September 1, 1996 or November 1, 1996, as the case may be. The premium, if any, shall constitute liquidated damages for the Company's failure to timely file a Registration Statement with the date SEC or failure to cause the Registration Statement is declared effective by to become effective, as the SEC; provided, however, case may be. The parties agree that there the foregoing damages are reasonable and that the anticipated damages for the failure of the Company to effect such registration are uncertain in amount and difficult to be proved. The premium shall be excluded from payable in coin or currency or, in lieu of a cash premium payment, the Subscriber may require the Company to issue shares of its Common Stock or a combination of Common Stock and cash as payment of the premium then due and payable, until such period any delays which are solely attributable to changes required by Purchaser in time as the Subscriber receives notification of either the filing of the Registration Statement with respect or effectiveness of the Registration Statement. If the Subscriber elects to information relating receive all or a portion of the premium in Common Stock, the Company shall issue to Purchaser, (ii) the Subscriber such number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective fully paid and (iii) the number non-assessable shares of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price as shall have an aggregate Market Value (as defined in the Certificate of Amendment) of the Shares Debentures and the Exercise Price (determined as defined in the Warrant Agreement) shall be decreased 2% on the date of such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser premium is payable) equal in cash on the last business day of each month during which an Event has occurred and is continuing. In the event Seller fails to make a Registration Delay Payment in a timely manner, such Registration Delay Payment shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in full.
(i) Seller will indemnify and hold harmless Purchaser and each person, if any, who Controls (as defined below) Purchaser from and against any and all losses, claims, damages, liabilities and legal and other expenses (including costs of investigation) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Act, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made, except amount to the extent that such losses, claims, damages, liabilities or expenses are caused by any such untrue statement or omission or alleged untrue statement or omission included premium which the Subscriber has elected to receive in reliance upon and in conformity with information furnished to Seller in writing by such seller expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) below, a person "Controls" another person if such first person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such second person, whether through the ownership of voting securities, by contract, or otherwisekind.
(ii) It shall be a condition to the obligation of Seller to effect a registration of Registrable Securities under the Securities Act pursuant hereto that Purchaser indemnify and hold harmless Seller and each person, if any, who Controls Seller to the same extent as the indemnity from Seller in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller in writing by Purchaser expressly for use in the Registration Statement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto; provided, however, that in the absence of fraud the aggregate amount of claims for which Purchaser may be liable under this paragraph 6.1(e)(ii) shall not exceed the Purchase Price paid by Purchaser for the Securities.
(iii) In case any claim shall be made or any proceeding (including any governmental investigation) shall be instituted involving any indemnified party in respect of which indemnity may be sought pursuant to this paragraph (e), such indemnified party shall promptly notify the indemnifying party in writing of the same; provided that failure to notify the indemnifying party shall not relieve it from any liability it may have to an indemnified party otherwise than under this paragraph (e). The indemnifying party, upon request of the indemnified party or parties, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaid, (B) the indemnifying party and such indemnified party shall have mutually agreed to the retention of such counsel or (C) representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate in the opinion of counsel to such indemnified party due to actual or potential conflicts of interest between such indemnified party and any other party represented by such counsel in such proceeding; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
Appears in 1 contract
Samples: Subscription Agreement (Computerized Thermal Imaging Inc)
Securities Act Registration. (a) Seller shall, at Seller's expense, The Company shall use its best efforts to register for resale under the Securities Act of 1933, as amended (the shares of Common Stock issuable upon conversion "Securities Act"), at the Company's expense, all of the Shares and exercise of the Warrants (collectively, the "Registrable SecuritiesRegisterable Shares") within ninety days from the date hereof, and in that connection shall file, by no later than February 22, 2000 (the "Filing Date"), regard will file a registration statement with respect to the Registrable Securities with the SEC Registration Statement (the "Registration Statement"). Seller shall use its commercially reasonable best efforts to cause ) on the Registration Statement to be declared effective under appropriate form with the Securities Act and Exchange Commission ("SEC") as promptly soon as possible after the filing thereof, practicable but in any no event on or prior the that date which is forty (40) later than 30 days from the Filing Date (the "Effectiveness Closing Date"). The number of shares of Common Stock included in the Registration Statement shall at all times be at least equal to 100% of the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants, and shall include any additional Registrable Securities issuable to Purchaser in connection with the First Closing which were not included on the registration statements filed in connection with the First Closing, without regard to any limitation on Purchaser's ability to convert the Shares or exercise the Warrants. Notice of effectiveness of the Registration Statement shall be furnished promptly to the Purchaser. Seller The Company shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement and from time to time will amend or supplement such Registration Statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act to permit the sale of the Registrable Securities by PurchaserAct. Seller shall use its commercially reasonable best efforts to maintain the The effectiveness of the Registration Statement shall be maintained with respect to Registrable Shares until the later to occur of the second anniversary of the Closing Date or such date as the Registrable Shares may be sold pursuant to Rule 144 under the Securities until Act or otherwise without registration. The Registration Statement and any registration filed pursuant to Section 3(b) below is sometimes also referred to as a "Registration Statement."
(b) So long as the Registrable Shares shall exceed three percent (3%) of the number of issued and outstanding shares of Common Stock of the Company, if the Company shall determine to register any of its securities for its own account or the account of a security holder or holders ("Other Holders") in respect of a registered public offering involving an underwriting, the Company will promptly give the Purchaser written notice thereof and use its best efforts to include in such registration and underwriting all of the Registrable Shares have been sold specified in a written request made by the Purchaser pursuant thereto within 20 days after the written notice from the Company to the Purchaser. Such written request may specify all or such date as all part of the Registrable Securities may be sold by Purchaser without registration.
(b) As a condition to the inclusion of the Registrable Securities in the Registration Statement, Purchaser will furnish to Seller such information with respect to Purchaser as is required to be disclosed in the Registration Statement (and the prospectus included therein) by the applicable rules, regulations and guidelines of the SEC.
(c) In connection with the registration of Registrable Securities under the Securities Act, Seller shall:
(i) prepare and file with the SEC a Registration Statement on the appropriate form with respect to such Registrable Securities and use its commercially reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after such filing;
(ii) prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) to the Registration Statement covering such Registrable Securities and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement until such time as all of the Registrable Securities registered thereunder have been disposed of in accordance with the intended method of disposition by Purchaser;
(iii) furnish to Purchaser of such Registrable Securities registered under the Securities Act such number of copies of a prospectus and preliminary prospectus in conformity with the requirements of the Securities Act, and such other documents as Purchaser may reasonably request, in order to facilitate the public sale or other disposition of such 's Registrable Securities;
(iv) notify Purchaser of such Registrable Securities if, at any time when a prospectus relating to such Registrable Securities is required to be delivered under the Securities Act, any event shall have occurred as a result of which the prospectus then in use with respect to such Registrable Securities would include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made or for any other reason it shall be necessary to amend or supplement such prospectus in order to comply with the Securities Act, and prepare and furnish to Purchaser a reasonable number of copies of a supplement to or an amendment of such prospectus which will correct such statement or omission or effect such compliance;
(v) use its commercially reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as Purchaser shall reasonably request, to keep such registrations and qualifications in effect for so long as the Registration Statement referred to in paragraph 6.1(c)(i) above remains in effect, and to do any and all other acts and things which may be necessary or desirable to enable Purchaser to consummate the public sale or other disposition in each such jurisdiction of such Registrable Securities owned by Purchaser; provided, however, that Seller will not be required to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) or (B) consent to general service of process in any such jurisdiction;
(vi) keep the Purchaser informed of Seller's best estimate of the earliest date on which such Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser of the following: (A) when such Registration Statement or any post-effective amendment or supplement thereto becomes effective or is approved, (B) of the issuance by any competent authority of any stop order suspending the effectiveness or qualification of such Registration Statement or the prospectus then in use or the initiation or threat of any proceeding for that purpose, and (C) of the suspension of the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction;
(vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants as shall be necessary to enable them to conduct a reasonable investigation within the meaning of the Securities Act; and
(viii) pay all costs and expenses incident to the performance and compliance by Seller with the provisions of this Section 6.1, including without limitation, (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitation, the entire expense of any special audits required by the rules and regulations of the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall (i) not later that the third business day following the Closing prepare and file with Nasdaq an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Closing necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities exchange or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchange.
(d) If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Date or (B) declared effective by the SEC on or before the Effectiveness Date, (ii) on any day after the Registration Statement has been declared effective by the SEC (A) sales of the Registrable Securities required to be included on the Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Shares held by Purchaser and (II) $100, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the SEC; provided, however, that there shall be excluded from such period any delays which are solely attributable to changes required by Purchaser in the Registration Statement with respect to information relating to Purchaser, (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Amendment) of the Shares and the Exercise Price (as defined in the Warrant Agreement) shall be decreased 2% on the date of such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser in cash on the last business day of each month during which an Event has occurred and is continuing. In the event Seller fails to make a Registration Delay Payment in a timely manner, such Registration Delay Payment shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in full.
(i) Seller will indemnify The Purchaser shall, together with the Company and hold harmless Purchaser and each person, if any, who Controls (as defined below) Purchaser from and against any and all losses, claims, damages, liabilities and legal and other expenses (including costs of investigation) caused by any untrue statement or alleged untrue statement of a material fact contained the Other Holders enter into an underwriting agreement in any Registration Statement under which such Registrable Securities were registered under customary form with the Securities Act, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light representative of the circumstances under which made, except to underwriter or underwriters selected by the extent that such losses, claims, damages, liabilities or expenses are caused by any such untrue statement or omission or alleged untrue statement or omission included in reliance upon and in conformity with information furnished to Seller in writing by such seller expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) below, a person "Controls" another person if such first person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such second person, whether through the ownership of voting securities, by contract, or otherwiseCompany.
(ii) It shall If the representative of the underwriters advises the Company in writing that marketing factors require a limitation on the number of shares to be a condition to underwritten, the obligation of Seller to effect a registration representative may exclude all Registrable Securities from, or limit the number of Registrable Securities under to be included in, the Securities Act pursuant hereto registration and underwriting. The Company shall so advise all holders of securities requesting registration and the number of shares of securities that Purchaser indemnify are entitled to be included in the registration and hold harmless Seller and each person, if any, who Controls Seller underwriting shall be allocated first to the same extent Company for securities being sold for its own account and thereafter as the indemnity from Seller set forth in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller in writing by Purchaser expressly for use in the Registration Statement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto; provided, however, that in the absence of fraud the aggregate amount of claims for which Purchaser may be liable under this paragraph 6.1(e)(iiSubsection 3(b)(iii) shall not exceed the Purchase Price paid by Purchaser for the Securitiesbelow.
(iii) In case any claim circumstances in which all of the Registrable Securities and shares of Holders requested to be included in a registration cannot be so included for the reason set forth in Subsection 3(b)(ii) above, the number of Registrable Securities and shares of Other Holders that may be so included shall be made or any proceeding (including any governmental investigation) shall be instituted involving any indemnified party in respect allocated among the Purchaser and Other Holders requesting inclusion of which indemnity may be sought pursuant to this paragraph (e), such indemnified party shall promptly notify securities pro rata on the indemnifying party in writing basis of the same; provided that failure to notify number of shares of Registrable Securities and the indemnifying party shall not relieve it from any liability it may have to an indemnified party otherwise than under this paragraph (e). The indemnifying party, upon request number of the indemnified party or parties, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements shares of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaid, (B) the indemnifying party and such indemnified party shall have mutually agreed to the retention of such counsel or (C) representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate in the opinion of counsel to such indemnified party due to actual or potential conflicts of interest between such indemnified party and any other party represented by such counsel in such proceeding; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgmentOther Holders.
Appears in 1 contract
Securities Act Registration. (a) Seller shall, at Seller's expense, 3.1. The Company shall use its best efforts to register promptly under the Securities Act Act, at the Company's expense (other than underwriting discounts and commissions, if any), all of the shares of Common Stock issuable upon the conversion of the Shares Debentures and exercise of the Warrants issued to the Purchaser (collectively, the "Registrable SecuritiesShares") and in that connection shall file, by no later than February 22, 2000 sixty (60) days after the "Filing Date"), date hereof a registration statement with respect to the Registrable Securities with the SEC Shares (the "Registration Statement"). Seller shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under ) with the Securities Act as promptly as possible after the filing thereof, but in any event on or prior the that date which is forty (40) days from the Filing Date and Exchange Commission (the "Effectiveness DateSEC"). The number of shares of Common Stock included in the Registration Statement shall at all times be at least equal to 100% of the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants, and shall include any additional Registrable Securities issuable to Purchaser in connection with the First Closing which were not included on the registration statements filed in connection with the First Closing, without regard to any limitation on Purchaser's ability to convert the Shares or exercise the Warrants. Notice of effectiveness of the Registration Statement shall be furnished promptly to the Purchaser. Seller The Company shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement and from time to time will amend or supplement such Registration Statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act to permit the sale of the Registrable Securities by PurchaserAct. Seller shall use its commercially reasonable best efforts to maintain the The effectiveness of the Registration Statement shall be maintained with respect to the Registrable Securities Shares until all of the Registrable Shares have been sold by Purchaser pursuant thereto or such date as all of the Registrable Securities Shares may be sold by Purchaser during any one period of three (3) consecutive months pursuant to Rule 144 under the Securities Act or otherwise without registration.
(ba) As If the Company shall determine to register any of its securities either for its own account or the account of a condition security holder or holders exercising their respective demand registration rights, other than a registration relating solely to employee benefit plans, or a registration relating to a corporate reorganization or other transaction under Rule 145, or a registration on any registration form that does not permit secondary sales, the inclusion of the Registrable Securities in the Registration Statement, Purchaser will furnish to Seller such information with respect to Purchaser as is required to be disclosed in the Registration Statement (and the prospectus included therein) by the applicable rules, regulations and guidelines of the SEC.
(c) In connection with the registration of Registrable Securities under the Securities Act, Seller shallCompany will:
(i) prepare and file with the SEC a Registration Statement on the appropriate form with respect promptly give to such Registrable Securities and use its commercially reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after such filing;each Holder written notice thereof; and
(ii) prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) to the Registration Statement covering such Registrable Securities and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement until such time as all of the Registrable Securities registered thereunder have been disposed of in accordance with the intended method of disposition by Purchaser;
(iii) furnish to Purchaser of such Registrable Securities registered under the Securities Act such number of copies of a prospectus and preliminary prospectus in conformity with the requirements of the Securities Act, and such other documents as Purchaser may reasonably request, in order to facilitate the public sale or other disposition of such Registrable Securities;
(iv) notify Purchaser of such Registrable Securities if, at any time when a prospectus relating to such Registrable Securities is required to be delivered under the Securities Act, any event shall have occurred as a result of which the prospectus then in use with respect to such Registrable Securities would include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made or for any other reason it shall be necessary to amend or supplement such prospectus in order to comply with the Securities Act, and prepare and furnish to Purchaser a reasonable number of copies of a supplement to or an amendment of such prospectus which will correct such statement or omission or effect such compliance;
(v) use its commercially reasonable best efforts to register or qualify include in such Registrable Securities registration (and any related qualification under such other securities or blue sky laws of such jurisdictions or other compliance), except as Purchaser shall reasonably request, to keep such registrations and qualifications set forth in effect for so long as the Registration Statement referred to in paragraph 6.1(c)(iSection 3.2(b) above remains in effectbelow, and to do any and all other acts and things which may be necessary or desirable to enable Purchaser to consummate the public sale or other disposition in each such jurisdiction of such Registrable Securities owned by Purchaser; provided, however, that Seller will not be required to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) underwriting involved therein, all the Registrable Shares specified in a written request or (B) consent to general service of process in any such jurisdiction;
(vi) keep the Purchaser informed of Seller's best estimate of the earliest date on which such Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser of the following: (A) when such Registration Statement or any post-effective amendment or supplement thereto becomes effective or is approvedrequests, (B) of the issuance made by any competent authority of any stop order suspending the effectiveness or qualification of such Registration Statement or the prospectus then in use or the initiation or threat of any proceeding for that purpose, Holder and (C) of the suspension of the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction;
(vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants as shall be necessary to enable them to conduct a reasonable investigation within the meaning of the Securities Act; and
(viii) pay all costs and expenses incident to the performance and compliance by Seller with the provisions of this Section 6.1, including without limitation, (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitation, the entire expense of any special audits required received by the rules and regulations of Company within ten (10) days after the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel written notice from the Company described in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall clause (i) not later that the third business day following the Closing prepare and file with Nasdaq an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Closing necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities exchange above is mailed or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchange.
(d) If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Date or (B) declared effective delivered by the SEC on Company. Such written request may specify all or before the Effectiveness Date, (ii) on any day after the Registration Statement has a part of a Holder's Registrable Shares provided that such Registrable Shares have not previously been declared effective by the SEC (A) sales of the Registrable Securities required to be included on the Registration Statement cannot be made registered pursuant to the Registration Statement filed pursuant to Section 3.1
(includingb) If the registration of which the Company gives notice is for a registered public offering involving an underwriting, without limitationthe Company shall so advise the Holders as a part of the written notice given pursuant to Section 3.2(a). In such event, because the right of any Holder to registration pursuant to this Section 3.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Shares in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 3.2, if the representative of the underwriters advises the Company in writing that marketing factors require a failure to keep limitation on the Registration Statement effective, to disclose such information as is necessary for sales number of shares to be made pursuant underwritten, the representative may (subject to the Registration Statementlimitations set forth below) exclude all Registrable Shares from, or limit the number of Registrable Shares to register sufficient be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of Common Stock) or (B) securities that are entitled to be included in the Common Stock is registration and underwriting shall be allocated first to the Company for securities being sold for its own account. IF any person does not listed or included for quotation on agree to the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason terms of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Shares held by Purchaser and (II) $100underwriting, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the SEC; provided, however, that there he shall be excluded therefrom by written notice from the Company or the underwriter. Any Registrable Shares or other securities excluded or withdrawn from such period any delays which are solely attributable to changes required by Purchaser in the Registration Statement with respect to information relating to Purchaser, (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Amendment) of the Shares and the Exercise Price (as defined in the Warrant Agreement) underwriting shall be decreased 2% on the date of withdrawn from such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser in cash on the last business day of each month during which an Event has occurred and is continuingregistration.
3.3. In the event Seller fails to make a Registration Delay Payment in a timely mannerthat the Company registers under the Securities Act any of the Registrable Shares held by the Purchaser, such Registration Delay Payment the Company shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in full.
(i) Seller will indemnify and and' hold harmless the Purchaser and each underwriter of such shares (including any broker or dealer through whom such of the shares may be sold) and each person, if any, who Controls controls the Purchaser or any such underwriter within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (as defined belowthe "Exchange Act") Purchaser from and against any and all losses, claims, damages, liabilities expenses or liabilities, joint or several, to which they or any of them become subject under the Securities Act or the Exchange Act or otherwise, and, except as hereinafter provided, shall reimburse the Purchaser and each of the underwriters and each such controlling person, if any, for any legal and or other expenses (including costs reasonably incurred by them or any of investigation) caused by them in connection with investigating or defending any actions whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in any the Registration Statement, or in the prospectus (or the Registration Statement under which such Registrable Securities were registered under or prospectus as from time to time amended or supplemented by the Securities Act, any prospectus Company) or preliminary prospectus contained therein arise out of or any amendment or supplement thereto, or caused by any are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading in light of the circumstances under which mademisleading, except to the extent that such losses, claims, damages, liabilities or expenses are caused by any unless such untrue statement or omission was made in such Registration Statement or alleged untrue statement or omission included prospectus in reliance upon and in conformity with information furnished to Seller in writing to the Company in connection therewith by the Purchaser (insofar as indemnification of the Purchaser is concerned) or any underwriter (insofar as indemnification of any such seller underwriter is concerned) relating thereto expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) belowPromptly after receipt by the Purchaser or any underwriter or any person controlling any of them, as the case may be, of notice of a person "Controls" another person if such first person possesses, directly or indirectlyclaim to which the foregoing indemnification applies, the power to direct Purchaser or cause such other person shall notify' the direction Company in writing of the management and policies commencement thereof and, subject to the provisions hereinafter stated, the Company shall assume the defense of such second action (including the employment of counsel, who shall be counsel reasonably satisfactory to the Purchaser or such underwriter or controlling person, whether through as the ownership case may be, and the payment of voting securitiesexpenses) insofar as such action shall relate to any alleged liability in respect of which indemnity may be sought against the Company. The Purchaser or any underwriter or any such controlling person shall have the right to employ separate counsel in any such action and to participate in the defense thereof but the fees and expenses of such counsel shall not be at the expense of the Company unless: (i) the employment of such counsel has been specifically authorized by the Company, by contract, or otherwise.
(ii) It the Company has failed to assume the defense and employ counsel, or (iii) the named parties of any such action, suit or proceeding (including any impleaded parties) include both the person or persons seeking indemnification (the "indemnified person") and the Company and such indemnified person shall have been advised by its counsel that representation of the indemnified person and the Company by the same counsel would be a condition inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the obligation Company shall not have the right to assume the defense of Seller such action, suit or proceeding on behalf of such indemnified person). The Company shall not be liable to effect a registration indemnify any person for any settlement by such person of Registrable Securities under any such action effected without the Securities Act pursuant hereto that Company's consent.
3.4. The Purchaser shall indemnify the Company, its officers and hold harmless Seller directors and each person, if any, who Controls Seller controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, against all losses, claims, damages, expenses or liabilities or actions to which they or any of them become subject under the Securities Act or the Exchange Act or otherwise, and shall reimburse the Company, its officers and directors and each such controlling person, if any, for any legal or other expenses reasonably incurred by them or any of them in connection with investigating or defending any actions whether or not resulting in any liability, insofar as such losses, claims damages, expenses, liabilities or actions arise out of or are based upon any information relating to the same extent as Purchaser furnished by or on behalf of the indemnity from Seller in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller Purchaser in writing specifically for inclusion in such Registration Statement Notwithstanding the above, the liability of the Purchaser under this' Section 3.4 shall not exceed the proceeds (net of underwriting discounts or commissions) received by the Purchaser expressly upon the sale of the Registrable Shares.
3.5. Any losses, claims, damages, liabilities and reasonable expenses for use in which an indemnified party is entitled to indemnification under Sections 3.3 and 3.4 of this Agreement shall be paid by the indemnifying party to the indemnified party as such losses, claims, damages, liabilities and expenses are incurred.
3.6. The Company shall prepare and file with the SEC such amendments and supplements to the Registration Statement, any and the prospectus or preliminary prospectus contained therein or any amendment or supplement thereto; providedused in connection with such Registration Statement as, however, that in the absence of fraud the aggregate amount of claims for which Purchaser may be liable under this paragraph 6.1(e)(ii) shall not exceed the Purchase Price paid by Purchaser for the Securities.
(iii) In case any claim shall be made or any proceeding (including any governmental investigation) shall be instituted involving any indemnified party in respect of which indemnity may be sought pursuant to this paragraph (e), such indemnified party shall promptly notify the indemnifying party in writing of the same; provided that failure to notify the indemnifying party shall not relieve it from any liability it may have to an indemnified party otherwise than under this paragraph (e). The indemnifying party, upon request of the indemnified party or parties, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaid, (B) the indemnifying party and such indemnified party shall have mutually agreed to the retention of such counsel or (C) representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate in the opinion of the counsel to such indemnified party due the Company, may be necessary to actual or potential conflicts comply with the provisions of interest between such indemnified party and any other party represented the Securities Act with respect to the disposition of all securities covered by such counsel in such proceeding; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgmentRegistration Statement.
Appears in 1 contract
Samples: Subscription Agreement (Interamericas Communications Corp)
Securities Act Registration. (a) Seller shall, at Seller's expense, 3.1. The Company shall use its best efforts to register promptly under the Securities Act Act, at the Company's expense (other than underwriting discounts and commissions, if any), all of the shares of Common Stock issuable upon the conversion of the Shares Debentures and exercise of the Warrants issued to the Purchaser (collectively, the "Registrable SecuritiesShares") and in that connection shall file, by no later than February 22, 2000 ninety (90) days after the "Filing Date")date hereof, a registration statement with respect to the Registrable Securities with the SEC Shares (the "Registration Statement"). Seller shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under ) with the Securities Act as promptly as possible after the filing thereof, but in any event on or prior the that date which is forty (40) days from the Filing Date and Exchange Commission (the "Effectiveness DateSEC"). The number of shares of Common Stock included in the Registration Statement shall at all times be at least equal to 100% of the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants, and shall include any additional Registrable Securities issuable to Purchaser in connection with the First Closing which were not included on the registration statements filed in connection with the First Closing, without regard to any limitation on Purchaser's ability to convert the Shares or exercise the Warrants. Notice of effectiveness of the Registration Statement shall be furnished promptly to the Purchaser. Seller The Company shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement and from time to time will amend or supplement such Registration Statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act to permit the sale of the Registrable Securities by PurchaserAct. Seller shall use its commercially reasonable best efforts to maintain the The effectiveness of the Registration Statement shall be maintained with respect to the Registrable Securities Shares until all of the Registrable Shares have been sold by Purchaser pursuant thereto or such date as all of the Registrable Securities Shares may be sold by Purchaser during any one period of three (3) consecutive months pursuant to Rule 144 under the Securities Act or otherwise without registration.
(ba) As If the Company shall determine to register any of its securities either for its own account or the account of a condition security holder or holders exercising their respective demand registration rights, other than a registration relating solely to employee benefit plans, or a registration relating to a corporate reorganization or other transaction under Rule 145, or a registration on any registration form that does not permit secondary sales, the inclusion of the Registrable Securities in the Registration Statement, Purchaser will furnish to Seller such information with respect to Purchaser as is required to be disclosed in the Registration Statement (and the prospectus included therein) by the applicable rules, regulations and guidelines of the SEC.
(c) In connection with the registration of Registrable Securities under the Securities Act, Seller shallCompany will:
(i) prepare and file with the SEC a Registration Statement on the appropriate form with respect promptly give to such Registrable Securities and use its commercially reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after such filing;each Holder written notice thereof; and
(ii) prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) to the Registration Statement covering such Registrable Securities and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement until such time as all of the Registrable Securities registered thereunder have been disposed of in accordance with the intended method of disposition by Purchaser;
(iii) furnish to Purchaser of such Registrable Securities registered under the Securities Act such number of copies of a prospectus and preliminary prospectus in conformity with the requirements of the Securities Act, and such other documents as Purchaser may reasonably request, in order to facilitate the public sale or other disposition of such Registrable Securities;
(iv) notify Purchaser of such Registrable Securities if, at any time when a prospectus relating to such Registrable Securities is required to be delivered under the Securities Act, any event shall have occurred as a result of which the prospectus then in use with respect to such Registrable Securities would include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made or for any other reason it shall be necessary to amend or supplement such prospectus in order to comply with the Securities Act, and prepare and furnish to Purchaser a reasonable number of copies of a supplement to or an amendment of such prospectus which will correct such statement or omission or effect such compliance;
(v) use its commercially reasonable best efforts to register or qualify include in such Registrable Securities registration (and any related qualification under such other securities or blue sky laws of such jurisdictions as Purchaser shall reasonably request, to keep such registrations and qualifications in effect for so long as the Registration Statement referred to in paragraph 6.1(c)(i) above remains in effect, and to do any and all other acts and things which may be necessary or desirable to enable Purchaser to consummate the public sale or other disposition compliance), except as set forth in each such jurisdiction of such Registrable Securities owned by Purchaser; provided, however, that Seller will not be required to (ASection 3.2(b) qualify to do business below and in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) underwriting involved therein, all the Registrable Shares specified in a written request or (B) consent to general service of process in any such jurisdiction;
(vi) keep the Purchaser informed of Seller's best estimate of the earliest date on which such Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser of the following: (A) when such Registration Statement or any post-effective amendment or supplement thereto becomes effective or is approvedrequests, (B) of the issuance made by any competent authority of any stop order suspending the effectiveness or qualification of such Registration Statement or the prospectus then in use or the initiation or threat of any proceeding for that purpose, Holder and (C) of the suspension of the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction;
(vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants as shall be necessary to enable them to conduct a reasonable investigation within the meaning of the Securities Act; and
(viii) pay all costs and expenses incident to the performance and compliance by Seller with the provisions of this Section 6.1, including without limitation, (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitation, the entire expense of any special audits required received by the rules and regulations of Company within ten (10) days after the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel written notice from the Company described in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall clause (i) not later that the third business day following the Closing prepare and file with Nasdaq an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Closing necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities exchange above is mailed or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchange.
(d) If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Date or (B) declared effective delivered by the SEC on Company. Such written request may specify all or before the Effectiveness Date, (ii) on any day after the Registration Statement has a part of a Holder's Registrable Shares provided that such Registrable Shares have not previously been declared effective by the SEC (A) sales of the Registrable Securities required to be included on the Registration Statement cannot be made registered pursuant to the Registration Statement filed pursuant to Section 3.1.
(includingb) If the registration of which the Company gives notice is for a registered public offering involving an underwriting, without limitationthe Company shall so advise the Holders as a part of the written notice given pursuant to Section 3.2(a). In such event, because the right of any Holder to registration pursuant to this Section 3.2 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Shares in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. Notwithstanding any other provision of this Section 3.2, if the representative of the underwriters advises the Company in writing that marketing factors require a failure to keep limitation on the Registration Statement effective, to disclose such information as is necessary for sales number of shares to be made pursuant underwritten, the representative may (subject to the Registration Statementlimitations set forth below) exclude all Registrable Shares from, or limit the number of Registrable Shares to register sufficient be included in, the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of Common Stock) or (B) securities that are entitled to be included in the Common Stock is registration and underwriting shall be allocated first to the Company for securities being sold for its own account. If any person does not listed or included for quotation on agree to the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason terms of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Shares held by Purchaser and (II) $100underwriting, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the SEC; provided, however, that there he shall be excluded therefrom by written notice from the Company or the underwriter. Any Registrable Shares or other securities excluded or withdrawn from such period any delays which are solely attributable to changes required by Purchaser in the Registration Statement with respect to information relating to Purchaser, (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Amendment) of the Shares and the Exercise Price (as defined in the Warrant Agreement) underwriting shall be decreased 2% on the date of withdrawn from such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser in cash on the last business day of each month during which an Event has occurred and is continuingregistration.
3.3. In the event Seller fails to make a Registration Delay Payment in a timely mannerthat the Company registers under the Securities Act any of the Registrable Shares held by the Purchaser, such Registration Delay Payment the Company shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in full.
(i) Seller will indemnify and hold harmless the Purchaser and each underwriter of such shares (including any broker or dealer through whom such of the shares may be sold) and each person, if any, who Controls controls the Purchaser or any such underwriter within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (as defined belowthe "Exchange Act") Purchaser from and against any and all losses, claims, damages, liabilities expenses or liabilities, joint or several, to which they or any of them become subject under the Securities Act or the Exchange Act or otherwise, and, except as hereinafter provided, shall reimburse the Purchaser and each of the underwriters and each such controlling person, if any, for any legal and or other expenses (including costs reasonably incurred by them or any of investigation) caused by them in connection with investigating or defending any actions whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in any the Registration Statement, or in the prospectus (or the Registration Statement under which such Registrable Securities were registered under or prospectus as from time to time amended or supplemented by the Securities Act, any prospectus Company) or preliminary prospectus contained therein arise out of or any amendment or supplement thereto, or caused by any are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading in light of the circumstances under which made, except to the extent that such losses, claims, damages, liabilities or expenses are caused by any misleading. unless such untrue statement or omission was made in such Registration Statement or alleged untrue statement or omission included prospectus in reliance upon and in conformity with information furnished to Seller in writing to the Company in connection therewith by such seller expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) below, a person "Controls" another person if such first person possesses, directly or indirectly, the power to direct or cause the direction Purchaser (insofar as indemnification of the management and policies of such second person, whether through the ownership of voting securities, by contract, or otherwise.
(iiPurchaser is concerned) It shall be a condition to the obligation of Seller to effect a registration of Registrable Securities under the Securities Act pursuant hereto that Purchaser indemnify and hold harmless Seller and each person, if any, who Controls Seller to the same extent as the indemnity from Seller in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller in writing by Purchaser expressly for use in the Registration Statement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto; provided, however, that in the absence underwriter (insofar as indemnification of fraud the aggregate amount of claims for which Purchaser may be liable under this paragraph 6.1(e)(ii) shall not exceed the Purchase Price paid by Purchaser for the Securities.
(iii) In case any claim shall be made or any proceeding (including any governmental investigation) shall be instituted involving any indemnified party in respect of which indemnity may be sought pursuant to this paragraph (e), such indemnified party shall promptly notify the indemnifying party in writing of the same; provided that failure to notify the indemnifying party shall not relieve it from any liability it may have to an indemnified party otherwise than under this paragraph (e). The indemnifying party, upon request of the indemnified party or parties, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaid, (B) the indemnifying party and such indemnified party shall have mutually agreed to the retention of such counsel or (C) representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate in the opinion of counsel to such indemnified party due to actual or potential conflicts of interest between such indemnified party and any other party represented by such counsel in such proceeding; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.underwriter is
Appears in 1 contract
Samples: Subscription Agreement (Interamericas Communications Corp)
Securities Act Registration. (a) Seller shallAs promptly as reasonably practicable, at Seller's expensebut in no event later than the date that is the later of (i) thirty (30) days following the closing of the transaction contemplated by the Purchase Agreement and (ii) ten (10) Business Days after the delivery to the Company of true and complete copies of any audited financial statements of Castex Energy 2014, register LLC and Castex Energy 2016, LP (which shall in each case be accompanied by an unqualified report of BDO USA, LLP) that are required to be included therein and any consents of BDO USA, LLP required under the Securities Act in connection with the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants (collectivelyfiling thereof, the "Registrable Securities"Company shall prepare and file with the Commission a Shelf Registration Statement (on Form S-3 if then eligible) and in that connection shall file, by no later than February 22, 2000 (to permit the "Filing Date"), a registration statement with respect to public resale of all of the Registrable Securities in accordance with the SEC (the "Registration Statement")terms of this Agreement. Seller The Company shall use its commercially reasonable best efforts to cause the such Shelf Registration Statement to be declared effective under by the Securities Act Commission as promptly soon as possible reasonably practicable after the initial filing thereofof the Shelf Registration Statement, but in any no event on or prior more than two (2) Business Days after the date that date which is forty thirty (4030) days from following the Filing Date filing thereof (or ninety (90) days following the "Effectiveness Date"filing thereof if the Commission notifies the Company that it will “Review” the Shelf Registration Statement). The number of shares of Common Stock included in the Shelf Registration Statement shall at all times be at least equal to 100% of provide for the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants, and shall include any additional Registrable Securities issuable to Purchaser in connection with the First Closing which were not included on the registration statements filed in connection with the First Closing, without regard to any limitation on Purchaser's ability to convert the Shares or exercise the Warrants. Notice of effectiveness of the Registration Statement shall be furnished promptly to Purchaser. Seller shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement and from time to time will amend or supplement such Registration Statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act to permit the sale resale of the Registrable Securities by Purchaser. Seller shall use its commercially reasonable best efforts pursuant to maintain any method or combination of methods legally available to, and requested by, the effectiveness Holders of the Registration Statement with respect to the Registrable Securities until all of the Registrable Shares have been sold by Purchaser pursuant thereto or such date as all of the Registrable Securities may be sold by Purchaser without registration.
(b) As a condition to the inclusion of the Registrable Securities in the Registration Statement, Purchaser will furnish to Seller such information with respect to Purchaser as is required to be disclosed in the Registration Statement (any and the prospectus included therein) by the applicable rules, regulations and guidelines of the SEC.
(c) In connection with the registration of Registrable Securities under the Securities Act, Seller shall:
(i) prepare and file with the SEC a Registration Statement on the appropriate form with respect to such Registrable Securities and use its commercially reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after such filing;
(ii) prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) to the Registration Statement covering such Registrable Securities and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Shelf Registration Statement. To the extent the initial Shelf Registration Statement until is not made on Form S-3, the Company shall, upon becoming eligible to file a registration statement on Form S-3, prepare and file a new Shelf Registration Statement on Form S-3 to replace the initial Shelf Registration Statement and use its best efforts to cause such time subsequent Shelf Registration Statement to be declared effective by the Commission as soon as reasonably practicable thereafter. The Company shall use its commercially reasonable efforts to cause any Shelf Registration Statement filed pursuant to this Section 2.01 to be continuously effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all of the Registrable Securities registered thereunder have been disposed of in accordance with by the intended method of disposition by Purchaser;
(iii) furnish to Purchaser of such Holders until all Registrable Securities registered under covered by such Shelf Registration Statement have ceased to be Registrable Securities (the Securities Act such number of copies of a prospectus “Effectiveness Period”). Such Shelf Registration Statement when effective (and preliminary prospectus all documents incorporated therein by reference) shall comply in conformity all material respects with the all applicable requirements of the Securities Act, Act and such other documents as Purchaser may reasonably request, in order to facilitate the public sale or other disposition of such Registrable Securities;
(iv) notify Purchaser of such Registrable Securities if, at any time when a prospectus relating to such Registrable Securities is required to be delivered under the Securities Act, any event Exchange Act and shall have occurred as a result of which the prospectus then in use with respect to such Registrable Securities would include not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (or, in the case of any prospectus contained in such Registration Statement, shall not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which made or for any other reason it shall be necessary to amend or supplement such prospectus in order to comply with the Securities Act, and prepare and furnish to Purchaser a reasonable number of copies of a supplement to or an amendment of such prospectus which will correct such statement or omission or effect such compliance;
(v) use its commercially reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as Purchaser shall reasonably request, to keep such registrations and qualifications in effect for so long as the Registration Statement referred to in paragraph 6.1(c)(i) above remains in effect, and to do any and all other acts and things which may be necessary or desirable to enable Purchaser to consummate the public sale or other disposition in each such jurisdiction of such Registrable Securities owned by Purchaser; provided, however, that Seller will not be required to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) or (B) consent to general service of process in any such jurisdiction;
(vi) keep the Purchaser informed of Seller's best estimate of the earliest date on which such Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser of the following: (A) when such Registration Statement or any post-effective amendment or supplement thereto becomes effective or is approved, (B) of the issuance by any competent authority of any stop order suspending the effectiveness or qualification of such Registration Statement or the prospectus then in use or the initiation or threat of any proceeding for that purpose, and (C) of the suspension of the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction;
(vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants as shall be necessary to enable them to conduct a reasonable investigation within the meaning of the Securities Act; and
(viii) pay all costs and expenses incident to the performance and compliance by Seller with the provisions of this Section 6.1, including without limitation, (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitation, the entire expense of any special audits required by the rules and regulations of the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall (i) not later that the third business day following the Closing prepare and file with Nasdaq an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Closing necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities exchange or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchange.
(d) If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Date or (B) declared effective by the SEC on or before the Effectiveness Date, (ii) on any day after the Registration Statement has been declared effective by the SEC (A) sales of the Registrable Securities required to be included on the Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Shares held by Purchaser and (II) $100, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the SEC; provided, however, that there shall be excluded from such period any delays which are solely attributable to changes required by Purchaser in the Registration Statement with respect to information relating to Purchaser, (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Amendment) of the Shares and the Exercise Price (as defined in the Warrant Agreement) shall be decreased 2% on the date of such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser in cash on the last business day of each month during which an Event has occurred and is continuing. In the event Seller fails to make a Registration Delay Payment in a timely manner, such Registration Delay Payment shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in full.
(i) Seller will indemnify and hold harmless Purchaser and each person, if any, who Controls (as defined below) Purchaser from and against any and all losses, claims, damages, liabilities and legal and other expenses (including costs of investigation) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such Registrable Securities they were registered under the Securities Act, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made, except to the extent that such losses, claims, damages, liabilities or expenses are caused by any such untrue statement or omission or alleged untrue statement or omission included in reliance upon and in conformity with information furnished to Seller in writing by such seller expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) below, a person "Controls" another person if such first person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such second person, whether through the ownership of voting securities, by contract, or otherwisenot misleading).
(ii) It shall be a condition to the obligation of Seller to effect a registration of Registrable Securities under the Securities Act pursuant hereto that Purchaser indemnify and hold harmless Seller and each person, if any, who Controls Seller to the same extent as the indemnity from Seller in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller in writing by Purchaser expressly for use in the Registration Statement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto; provided, however, that in the absence of fraud the aggregate amount of claims for which Purchaser may be liable under this paragraph 6.1(e)(ii) shall not exceed the Purchase Price paid by Purchaser for the Securities.
(iii) In case any claim shall be made or any proceeding (including any governmental investigation) shall be instituted involving any indemnified party in respect of which indemnity may be sought pursuant to this paragraph (e), such indemnified party shall promptly notify the indemnifying party in writing of the same; provided that failure to notify the indemnifying party shall not relieve it from any liability it may have to an indemnified party otherwise than under this paragraph (e). The indemnifying party, upon request of the indemnified party or parties, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaid, (B) the indemnifying party and such indemnified party shall have mutually agreed to the retention of such counsel or (C) representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate in the opinion of counsel to such indemnified party due to actual or potential conflicts of interest between such indemnified party and any other party represented by such counsel in such proceeding; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
Appears in 1 contract
Securities Act Registration. (a) Seller shall, at Seller's expense, The Company shall use its best efforts to register for resale under the Securities Act of 1933, as amended (the shares of Common Stock issuable upon conversion "Securities Act"), at the Company's expense, all of the Shares and exercise of the Warrants (collectively, the "Registrable SecuritiesRegisterable Shares") within ninety days from the date hereof, and in that connection shall file, by no later than February 22, 2000 (the "Filing Date"), regard will file a registration statement with respect to the Registrable Securities with the SEC Registration Statement (the "Registration Statement"). Seller shall use its commercially reasonable best efforts to cause ) on the Registration Statement to be declared effective under appropriate form with the Securities Act and Exchange Commission ("SEC") as promptly soon as possible after the filing thereof, but in any event on or prior the that date which is forty (40) days from the Filing Date (the "Effectiveness Date"). The number of shares of Common Stock included in the Registration Statement shall at all times be at least equal to 100% of the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants, and shall include any additional Registrable Securities issuable to Purchaser in connection with the First Closing which were not included on the registration statements filed in connection with the First Closing, without regard to any limitation on Purchaser's ability to convert the Shares or exercise the Warrantspracticable. Notice of effectiveness of the Registration Statement shall be furnished promptly to the Purchaser. Seller The Company shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement and from time to time will amend or supplement such Registration Statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act to permit the sale of the Registrable Securities by PurchaserAct. Seller shall use its commercially reasonable best efforts to maintain the The effectiveness of the Registration Statement shall be maintained with respect to Registrable Shares until the later to occur of the second anniversary of the Closing Date or such date as the Registrable Shares may be sold pursuant to Rule 144 under the Securities until Act or otherwise without registration. The Registration Statement and any registration filed pursuant to Section 3(b) below is sometimes also referred to as a "Registration Statement."
(b) So long as the Registrable Shares shall exceed three percent (3%) of the number of issued and outstanding shares of Common Stock of the Company, if the Company shall determine to register any of its securities for its own account or the account of a security holder or holders ("Other Holders") in respect of a registered public offering involving an underwriting, the Company will promptly give the Purchaser written notice thereof and use its best efforts to include in such registration and underwriting all of the Registrable Shares have been sold specified in a written request made by the Purchaser pursuant thereto within 20 days after the written notice from the Company to the Purchaser. Such written request may specify all or such date as all part of the Registrable Securities may be sold by Purchaser without registration.
(b) As a condition to the inclusion of the Registrable Securities in the Registration Statement, Purchaser will furnish to Seller such information with respect to Purchaser as is required to be disclosed in the Registration Statement (and the prospectus included therein) by the applicable rules, regulations and guidelines of the SEC.
(c) In connection with the registration of Registrable Securities under the Securities Act, Seller shall:
(i) prepare and file with the SEC a Registration Statement on the appropriate form with respect to such Registrable Securities and use its commercially reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after such filing;
(ii) prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) to the Registration Statement covering such Registrable Securities and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement until such time as all of the Registrable Securities registered thereunder have been disposed of in accordance with the intended method of disposition by Purchaser;
(iii) furnish to Purchaser of such Registrable Securities registered under the Securities Act such number of copies of a prospectus and preliminary prospectus in conformity with the requirements of the Securities Act, and such other documents as Purchaser may reasonably request, in order to facilitate the public sale or other disposition of such 's Registrable Securities;
(iv) notify Purchaser of such Registrable Securities if, at any time when a prospectus relating to such Registrable Securities is required to be delivered under the Securities Act, any event shall have occurred as a result of which the prospectus then in use with respect to such Registrable Securities would include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made or for any other reason it shall be necessary to amend or supplement such prospectus in order to comply with the Securities Act, and prepare and furnish to Purchaser a reasonable number of copies of a supplement to or an amendment of such prospectus which will correct such statement or omission or effect such compliance;
(v) use its commercially reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as Purchaser shall reasonably request, to keep such registrations and qualifications in effect for so long as the Registration Statement referred to in paragraph 6.1(c)(i) above remains in effect, and to do any and all other acts and things which may be necessary or desirable to enable Purchaser to consummate the public sale or other disposition in each such jurisdiction of such Registrable Securities owned by Purchaser; provided, however, that Seller will not be required to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) or (B) consent to general service of process in any such jurisdiction;
(vi) keep the Purchaser informed of Seller's best estimate of the earliest date on which such Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser of the following: (A) when such Registration Statement or any post-effective amendment or supplement thereto becomes effective or is approved, (B) of the issuance by any competent authority of any stop order suspending the effectiveness or qualification of such Registration Statement or the prospectus then in use or the initiation or threat of any proceeding for that purpose, and (C) of the suspension of the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction;
(vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants as shall be necessary to enable them to conduct a reasonable investigation within the meaning of the Securities Act; and
(viii) pay all costs and expenses incident to the performance and compliance by Seller with the provisions of this Section 6.1, including without limitation, (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitation, the entire expense of any special audits required by the rules and regulations of the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall (i) not later that the third business day following the Closing prepare and file with Nasdaq an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Closing necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities exchange or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchange.
(d) If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Date or (B) declared effective by the SEC on or before the Effectiveness Date, (ii) on any day after the Registration Statement has been declared effective by the SEC (A) sales of the Registrable Securities required to be included on the Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Shares held by Purchaser and (II) $100, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the SEC; provided, however, that there shall be excluded from such period any delays which are solely attributable to changes required by Purchaser in the Registration Statement with respect to information relating to Purchaser, (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Amendment) of the Shares and the Exercise Price (as defined in the Warrant Agreement) shall be decreased 2% on the date of such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser in cash on the last business day of each month during which an Event has occurred and is continuing. In the event Seller fails to make a Registration Delay Payment in a timely manner, such Registration Delay Payment shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in full.
(i) Seller will indemnify The Purchaser shall, together with the Company and hold harmless Purchaser and each person, if any, who Controls (as defined below) Purchaser from and against any and all losses, claims, damages, liabilities and legal and other expenses (including costs of investigation) caused by any untrue statement or alleged untrue statement of a material fact contained the Other Holders enter into an underwriting agreement in any Registration Statement under which such Registrable Securities were registered under customary form with the Securities Act, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light representative of the circumstances under which made, except to Underwriter or underwriters selected by the extent that such losses, claims, damages, liabilities or expenses are caused by any such untrue statement or omission or alleged untrue statement or omission included in reliance upon and in conformity with information furnished to Seller in writing by such seller expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) below, a person "Controls" another person if such first person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such second person, whether through the ownership of voting securities, by contract, or otherwiseCompany.
(ii) It shall If the representative of the underwriters advises the Company in writing that marketing factors require a limitation on the number of shares to be a condition to underwritten, the obligation of Seller to effect a registration representative may exclude all Registrable Securities from, or limit the number of Registrable Securities under to be included in, the Securities Act pursuant hereto registration and underwriting. The Company shall so advise all holders of securities requesting registration and the number of shares of securities that Purchaser indemnify are entitled to be included in the registration and hold harmless Seller and each person, if any, who Controls Seller underwriting shall be allocated first to the same extent Company for securities being sold for its own account and thereafter as the indemnity from Seller set forth in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller in writing by Purchaser expressly for use in the Registration Statement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto; provided, however, that in the absence of fraud the aggregate amount of claims for which Purchaser may be liable under this paragraph 6.1(e)(iiSubsection 3(b)(iii) shall not exceed the Purchase Price paid by Purchaser for the Securitiesbelow.
(iii) In case any claim circumstances in which all of the Registrable Securities and shares of Holders requested to be included in a registration cannot be so included for the reason set forth in Subsection 3(b)(ii) above, the number of Registrable Securities and shares of Other Holders that may be so included shall be made or any proceeding (including any governmental investigation) shall be instituted involving any indemnified party in respect allocated among the Purchaser and Other Holders requesting inclusion of which indemnity may be sought pursuant to this paragraph (e), such indemnified party shall promptly notify securities pro rata on the indemnifying party in writing basis of the same; provided that failure to notify number of shares of Registrable Securities and the indemnifying party shall not relieve it from any liability it may have to an indemnified party otherwise than under this paragraph (e). The indemnifying party, upon request number of the indemnified party or parties, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements shares of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaid, (B) the indemnifying party and such indemnified party shall have mutually agreed to the retention of such counsel or (C) representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate in the opinion of counsel to such indemnified party due to actual or potential conflicts of interest between such indemnified party and any other party represented by such counsel in such proceeding; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgmentOther Holders.
Appears in 1 contract
Securities Act Registration. (a) Seller shall, at Seller's expense, register under the Securities Act the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants (collectively, the "Registrable Securities") and in that connection shall file, by no later than February 22, 2000 (the "Filing Date"), a registration statement with respect to the Registrable Securities with the SEC (the "Registration Statement"). Seller a. The Company shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event on or prior the that date which is forty (40) days from the Filing Date (the "Effectiveness Date"). The number of shares of Common Stock included in the Registration Statement shall at all times be at least equal to 100% of the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants, and shall include any additional Registrable Securities issuable to Purchaser in connection with the First Closing which were not included on the registration statements filed in connection with the First Closing, without regard to any limitation on Purchaser's ability to convert the Shares or exercise the Warrants. Notice of effectiveness of the Registration Statement shall be furnished promptly to Purchaser. Seller shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement and from time to time will amend or supplement such Registration Statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act to permit the sale of the Registrable Securities by Purchaser. Seller shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement with respect to the Registrable Securities until all of the Registrable Shares have been sold by Purchaser pursuant thereto or such date as all of the Registrable Securities may be sold by Purchaser without registration.
(b) As a condition to the inclusion of the Registrable Securities in the Registration Statement, Purchaser will furnish to Seller such information with respect to Purchaser as is required to be disclosed in the Registration Statement (and the prospectus included therein) by the applicable rules, regulations and guidelines of the SEC.
(c) In connection with the registration of Registrable Securities under the Securities Act, Seller shallto:
(i) prepare i. Prepare and file with the SEC a Registration Statement on Form S-1 registration statement relating to the appropriate form with respect shares of Company common stock issuable upon conversion of the Preferred Stock within thirty (30) days of the date hereof naming the Buyer as a selling shareholder and keep such registration statement effective until the Buyer can sell such shares without registration under Rule 144(k). In the event that the registration statement is not declared effective within sixty (60) days of the date hereof, the Company shall pay Pinnacle within three (3) business days at the end of each month a cash payment equal to such Registrable Securities two percent (2%) per month as liquidated damages and use its commercially reasonable best efforts to cause such Registration Statement to become effective not as soon as practicable after such filing;a penalty.
(ii) prepare . Prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) to the Registration Statement covering such Registrable Securities registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities securities covered by such Registration Statement until such time as all registration statement and notify the holders of the Registrable Securities registered thereunder have been disposed filing and effectiveness of in accordance with the intended method of disposition by Purchasersuch Registration statement and any amendments or supplements;
(iii) furnish . Furnish to Purchaser of Buyer such Registrable Securities registered under the Securities Act such number numbers of copies of a prospectus and current prospectus, including a preliminary prospectus in conformity prospectus, conforming with the requirements of the Securities 1933 Act, copies of the registration statement any amendment or supplement to any thereof and any documents incorporated by reference therein, and such other documents as Purchaser Buyer may reasonably request, require in order to facilitate the public sale or other disposition of such Registrable Securitiesthe shares of Common Stock issuable under the Preferred Stock;
(iv) notify Purchaser . Use its best efforts to register and qualify the securities covered by such registration statement under such other securities or "Blue Sky" laws of such Registrable Securities if, at any time when a prospectus relating to such Registrable Securities is required to jurisdictions as shall be delivered under reasonably requested by Buyer;
v. Notify Buyer immediately of the Securities Act, happening of any event shall have occurred as a result of which the prospectus included in such registration statement, as then in use with respect to such Registrable Securities would include effect, includes an untrue statement of a material fact or omit omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made or for any other reason it shall be necessary to amend or supplement such prospectus in order to comply with the Securities Actthen existing, and prepare and furnish to Purchaser a reasonable number of copies of a supplement to or an amendment of such prospectus which will correct such statement or omission or effect such compliance;
(v) use its commercially reasonable best efforts to register or qualify promptly update and/or correct such Registrable Securities prospectus.
b. Upon request of the Company, Buyer will furnish to the Company in connection with any registration under this Section such other information regarding itself, the securities or blue sky laws of the Company held by it, and the intended method of disposition of such jurisdictions as Purchaser shall reasonably request, to keep such registrations and qualifications in effect for so long as the Registration Statement referred to in paragraph 6.1(c)(i) above remains in effect, and to do any and all other acts and things which may be necessary or desirable to enable Purchaser to consummate the public sale or other disposition in each such jurisdiction of such Registrable Securities owned by Purchaser; provided, however, that Seller will not be required to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) or (B) consent to general service of process in any such jurisdiction;
(vi) keep the Purchaser informed of Seller's best estimate of the earliest date on which such Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser of the following: (A) when such Registration Statement or any post-effective amendment or supplement thereto becomes effective or is approved, (B) of the issuance by any competent authority of any stop order suspending the effectiveness or qualification of such Registration Statement or the prospectus then in use or the initiation or threat of any proceeding for that purpose, and (C) of the suspension of the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction;
(vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants securities as shall be necessary reasonably required to enable them to conduct a reasonable investigation effect the registration of the securities held by Buyer.
i. To the fullest extent permitted by law, the Company shall indemnify, defend and hold harmless Buyer and each of its officers, directors, employees, agents, partners or controlling persons (within the meaning of the Securities Act; and
0000 Xxx) (viiieach, an "indemnified party") pay from and against, and shall reimburse such indemnified party with respect to, any and all claims, suits, demands, causes of action, losses, damages, liabilities, costs and or expenses incident ("Liabilities") to which such indemnified party may become subject under the performance and compliance by Seller with the provisions of this Section 6.11933 Act or otherwise, including without limitation, arising from or relating to (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitation, the entire expense of any special audits required by the rules and regulations of the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall (i) not later that the third business day following the Closing prepare and file with Nasdaq an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Closing necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities exchange or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchange.
(d) If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Date or (B) declared effective by the SEC on or before the Effectiveness Date, (ii) on any day after the Registration Statement has been declared effective by the SEC (A) sales of the Registrable Securities required to be included on the Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Shares held by Purchaser and (II) $100, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the SEC; provided, however, that there shall be excluded from such period any delays which are solely attributable to changes required by Purchaser in the Registration Statement with respect to information relating to Purchaser, (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Amendment) of the Shares and the Exercise Price (as defined in the Warrant Agreement) shall be decreased 2% on the date of such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser in cash on the last business day of each month during which an Event has occurred and is continuing. In the event Seller fails to make a Registration Delay Payment in a timely manner, such Registration Delay Payment shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in full.
(i) Seller will indemnify and hold harmless Purchaser and each person, if any, who Controls (as defined below) Purchaser from and against any and all losses, claims, damages, liabilities and legal and other expenses (including costs of investigation) caused by any untrue statement or alleged untrue statement of a any material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Actregistration statement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto, or caused by any (B) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances under in which they were made, except not misleading; PROVIDED, HOWEVER, that the Company shall not be liable in any such case to the extent that such losses, claims, damages, liabilities or expenses are caused by any such Liability arises out of or is based upon an untrue statement or omission so made in strict conformity with information furnished by such indemnified party in writing specifically for use in the registration statement.
ii. Buyer agrees to indemnity, defend and hold harmless the Company, and its officers, directors, employees, agents, partners, or controlling persons (within the meaning of the 0000 Xxx) (each, an "indemnified party") from and against, and shall reimburse such indemnified party with respect to, any and all Liabilities to which such indemnified party may become subject under the 1933 Act or otherwise, arising from or relating to (A) any untrue statement or alleged untrue statement or omission included of any material fact contained in reliance upon and in conformity with information furnished to Seller in writing by such seller expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) below, a person "Controls" another person if such first person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such second person, whether through the ownership of voting securities, by contract, or otherwise.
(ii) It shall be a condition to the obligation of Seller to effect a registration of Registrable Securities under the Securities Act pursuant hereto that Purchaser indemnify and hold harmless Seller and each person, if any, who Controls Seller to the same extent as the indemnity from Seller in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller in writing by Purchaser expressly for use in the Registration Statementstatement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto, or (B) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; providedPROVIDED, howeverTHAT Buyer will be liable in any such case to the extent and only to the extent, that any such Liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, prospectus or amendment or supplement thereto in reliance upon and in conformity with written information furnished by Buyer specifically for use in the absence of fraud the aggregate amount of claims for which Purchaser preparation thereof, and such Liability may be liable under this paragraph 6.1(e)(ii) shall not in no event exceed the Purchase Price paid by Purchaser for value of the SecuritiesRegistrable Securities so registered.
(iii) In case any claim shall be made or any proceeding (including any governmental investigation) shall be instituted involving . Promptly after receipt by any indemnified party in respect of which indemnity may be sought pursuant to this paragraph (e)notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against another party (the "indemnifying party") hereunder, notify such party in writing thereof, but the omission so to notify such party shall promptly not relieve such party from any Liability which it may have to the indemnified party other than under this Section and shall only relieve it from any Liability which it may have to the indemnified party under this Section if and to the extent an indemnifying party is materially prejudiced by such omission. In case any such action shall be brought against any indemnified party and such indemnified party shall notify an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in writing and, to the extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified party, and, after notice from the indemnifying party to the indemnified party of its election so to assume and undertake the same; provided that failure to notify defense thereof, the indemnifying party shall not relieve it from any liability it may have be liable to an the indemnified party otherwise than under this paragraph (e). The Section for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected; PROVIDED, HOWEVER, that if the defendants in any such action include both parties and the indemnified party shall have reasonably concluded that there may be reasonable defenses available to them which are different from or additional to those available to the indemnifying party, upon request party or if the interests of the indemnified party or partiesreasonably may be deemed to conflict with the interests of the indemnifying party, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but select a separate counsel and to assume such legal defenses and otherwise to participate in the fees and disbursements defense of such action, with the reasonable expenses and fees of one such separate counsel and other reasonable expenses related to such participation to be reimbursed by the indemnifying party as incurred.
d. With respect to the above-referenced registration statement, all fees, costs and expenses of and incidental to such registration, inclusion and public offering shall be at borne by the expense Company, except any underwriting discounts and commissions.
e. The rights to cause the Company to register all or any portion of securities pursuant to this Section 5 may be assigned by Buyer to a proper transferee or assignee as described herein. Within a reasonable time after such transfer, the Buyer shall notify the Company of the name and address of such indemnified party unless transferee or assignee, and the securities with respect to which such registration rights are being assigned. Such assignment shall be effective only if, (i) the Buyer agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within a reasonable time after such transfer or assignment (subject to the purchase price of the shares being kept confidential by the Buyer and such transferee or assignee, (ii) the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaidname and address of such transferee or assignee, (B) the indemnifying party securities with respect to which such registration rights are being assigned, (iii) following such transfer or assignment, the further disposition of the securities by the transferee or assignee is restricted under the 1933 Act and applicable state securities laws, (iv) at or before the time that the Company receives the written notice contemplated by clause (ii) of this sentence the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein, (v) such indemnified party transfer shall have mutually agreed to been made in accordance with the retention applicable requirements of the purchase agreement covering the transaction and (vi) such counsel or (C) representation transferee shall be an "accredited investor", as that term is defined in Rule 501 of such indemnified party by Regulation D, promulgated under the counsel retained by the indemnifying party would be inappropriate in the opinion of counsel to such indemnified party due to actual or potential conflicts of interest between such indemnified party and any other party represented by such counsel in such proceeding; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment1933 Act.
Appears in 1 contract
Samples: Securities Purchase Agreement (Stratus Services Group Inc)
Securities Act Registration. (a) Seller shall, at Seller's expense, The Company shall register promptly under the Securities Act Act, at the Company's expense (other than underwriting discounts and commissions, if any), all of the shares of Common Stock issuable upon the conversion of the Shares Debentures and exercise such number of shares of Common Stock equal to the Warrants number of shares of Common Stock that the Company may issue as payment of any accrued interest on the Debentures (collectively, the "Registrable SecuritiesShares") and in that connection shall file, by no later than February 22, 2000 sixty (60) days after the "Filing Date")date hereof, a registration statement with respect to the Registrable Securities with the SEC Shares (the "Registration Statement"). Seller ) with the SEC and shall use its commercially reasonable best efforts to cause the have such Registration Statement to be declared effective under by the Securities Act as promptly as possible after the filing thereof, but in any event on or prior the that date which is forty SEC within one hundred twenty (40120) days from the Filing Date (the "Effectiveness Date"). The number of shares of Common Stock included in the Registration Statement shall at all times be at least equal to 100% of the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants, and shall include any additional Registrable Securities issuable to Purchaser in connection with the First Closing which were not included on the registration statements filed in connection with the First Closing, without regard to any limitation on Purchaser's ability to convert the Shares or exercise the Warrantsafter filing. Notice of effectiveness of the Registration Statement shall be furnished promptly to the Purchaser. Seller The Company shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement and from time to time will amend or supplement such Registration Statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act to permit the sale of the Registrable Securities by PurchaserAct. Seller The Company shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement with respect to the Registrable Securities Shares until all of the Registrable Shares have been sold by the Purchaser pursuant thereto or such date as all of the Registrable Securities Shares may be sold by the Purchaser during any one period of three (3) consecutive months pursuant to Rule 144 under the Securities Act or otherwise without registration.
(b) As a condition to In the inclusion event that the Company registers under the Securities Act any of the Registrable Shares held by the Purchaser, the Company shall indemnify and hold harmless the Purchaser and each underwriter, sales or placement agent of such shares and each person, if any, who controls the Purchaser or any such underwriter or agent within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act from and against any and all losses, claims, damages, expenses or liabilities, joint or several, to which they or any of them become subject under the Securities Act or the Exchange Act or otherwise, and, except as hereinafter provided, shall reimburse the Purchaser and each of the underwriters, agents and each such controlling person, if any, for any legal or other expenses reasonably incurred by them or any of them in connection with investigating or defending any actions whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, Purchaser will furnish or in the prospectus (or the Registration Statement or prospectus as from time to Seller time amended or supplemented by the Company) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that the Company shall not be liable to any Purchaser, underwriter or controlling person in any such case to the extent that any such loss, claim, damage, expense or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, or preliminary, final or summary prospectus, or amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Purchaser, underwriter or controlling person expressly for use therein; and provided, further, that the Company shall not be liable to any underwriter, placement or sales agent or controlling person under the indemnity agreement in this subsection (b): (i) who has not complied with Section 5(f) or 5(g) hereof or (ii) with respect to the Registration Statement, or any preliminary or final or summary prospectus, to the extent that any such loss, claim, damage, expense or liability of such underwriter, agent or controlling person results from the fact that such underwriter, agent or controlling person sold Registrable Shares to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the related amended registration statement or amended or supplemented prospectus which the Company has previously furnished to such underwriter, agent or controlling person and which corrects the statement or omission, or alleged statement or omission, out of which such loss, claim, damage or liability arises. Promptly after receipt by the Purchaser or any underwriter, agent or any person controlling any of them, as is required the case may be, of notice of a claim to which the foregoing indemnification applies, the Purchaser or such other person shall notify the Company in writing of the commencement thereof, and, subject to the provisions hereinafter stated, the Company shall assume the defense of such action (including the employment of counsel, who shall be disclosed counsel reasonably satisfactory to the Purchaser or such underwriter, agent or controlling person, as the case may be, and the payment of expenses) insofar as such action shall relate to any alleged liability in respect of which indemnity may be sought against the Company. The Purchaser or any underwriter, agent or any such controlling person shall have the right to employ separate counsel in any such action and to participate in the Registration Statement defense thereof but the fees and expenses of such counsel shall not be at the expense of the Company unless: (x) the employment of such counsel has been specifically authorized by the Company, (y) the Company has failed to assume the defense and employ counsel, or (z) the named parties of any such action, suit or proceeding (including any impleaded parties) include both the person or persons seeking indemnification (the "indemnified person") and the prospectus included therein) Company and such indemnified person shall have been advised by its counsel that representation of the indemnified person and the Company by the same counsel would be inappropriate under applicable rulesstandards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Company shall not have the right to assume the defense of such action, regulations and guidelines suit or proceeding on behalf of such indemnified person). The Company shall not be liable to indemnify the SECPurchaser or any underwriter, agent or any such controlling person for any settlement of any such action effected without the Company's consent.
(c) In connection with The Purchaser shall indemnify the registration Company, its officers and directors and each person, if any, who controls the Company within the meaning of Registrable Section 15 of the Securities Act or Section 20(a) of the Exchange Act, against all losses, claims, damages, expenses or liabilities or actions to which they or any of them become subject under the Securities ActAct or the Exchange Act or otherwise, Seller shall:and shall reimburse the Company, its officers and directors and each such controlling person, if any, for any legal or other expenses reasonably incurred by them or any of them in connection with investigating or defending any actions whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon any information relating to the Purchaser furnished by or on behalf of the Purchaser in writing specifically for inclusion in such Registration Statement. Notwithstanding the above, the liability of the Purchaser under this Section 5(c) shall not exceed the proceeds (net of underwriting discounts or commissions) received by the Purchaser upon the sale of the Registrable Shares.
(d) Any losses, claims, damages, liabilities and reasonable expenses for which an indemnified party is entitled to indemnification under Sections 5(b) and 5(c) of this Agreement shall be paid by the indemnifying party to the indemnified party as such losses, claims, damages, liabilities and expenses are incurred.
(e) The Company shall promptly notify in writing the Purchaser or the sales or placement agent, if any, of Registrable Shares covered by the Registration Statement and the managing underwriter or underwriters, if any, (i) prepare and file with the SEC a when such Registration Statement on or the appropriate form prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such Registrable Securities and use its commercially reasonable best efforts to cause Registration Statement or any post-effective amendment, when the same has become effective, (ii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement to become effective as soon as practicable after such filing;
or the initiation or threatening of any proceedings for that purpose, (iiiii) prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) to the Registration Statement covering such Registrable Securities and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act receipt by the Company of any notification with respect to the disposition suspension of all Registrable Securities covered by such Registration Statement until such time as all the qualification of the Registrable Securities registered thereunder have been disposed Shares for sale in any jurisdiction or the initiation or threatening of in accordance with the intended method of disposition by Purchaser;
(iii) furnish to Purchaser of any proceeding for such Registrable Securities registered under the Securities Act such number of copies of a prospectus and preliminary prospectus in conformity with the requirements of the Securities Actpurpose, and such other documents as Purchaser may reasonably request, in order to facilitate the public sale or other disposition of such Registrable Securities;
(iv) notify Purchaser of such Registrable Securities if, at any time when a prospectus relating to such Registrable Securities is required to be delivered under the Securities Act, that such Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment, or any document incorporated by reference in any of the foregoing, contains or may contain an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(f) In the event that the Company would be required to deliver a notice, pursuant to Section 5(e) above, the Company shall have occurred without delay prepare and furnish to the Purchaser, to each placement or sales agent of Registrable Shares, if any, and to each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as a result thereafter delivered to purchasers of which the Registrable Shares, such prospectus then in use with respect to such Registrable Securities would include shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made then existing. The sellers of Registrable Shares agree that upon receipt of any notice from the Company pursuant to Section 5(e) hereof, they shall forthwith discontinue the disposition of Registrable Shares pursuant to the Registration Statement applicable to such Registrable Shares until they shall have received copies of such amended or for any supplemented prospectus, and if so directed by the Company, the sellers of Registrable Shares shall deliver to the Company all copies, other reason it shall be necessary than permanent file copies, then in their possession of the prospectus covering such Registrable Shares at the time of receipt of such notice.
(g) The Company may require the sellers of Registrable Shares to amend or supplement furnish to the Company such prospectus information regarding such sellers and their intended method of distribution of such Registrable Shares as the Company may from time to time reasonably request in writing, but only to the extent that such information is required in order to comply with the Securities Act, and prepare and furnish . Each such seller agrees to Purchaser a reasonable number notify the Company as promptly as practicable of copies of a supplement any inaccuracy or change in information previously furnished by such seller to the Company or an amendment of such prospectus which will correct such statement or omission or effect such compliance;
(v) use its commercially reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as Purchaser shall reasonably request, to keep such registrations and qualifications in effect for so long as the Registration Statement referred to in paragraph 6.1(c)(i) above remains in effect, and to do any and all other acts and things which may be necessary or desirable to enable Purchaser to consummate the public sale or other disposition in each such jurisdiction of such Registrable Securities owned by Purchaser; provided, however, that Seller will not be required to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) or (B) consent to general service of process in any such jurisdiction;
(vi) keep the Purchaser informed of Seller's best estimate of the earliest date on which such Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser of the following: (A) when such Registration Statement or any post-effective amendment or supplement thereto becomes effective or is approved, (B) of the issuance by any competent authority occurrence of any stop order suspending the effectiveness or qualification event in either case as a result of such Registration Statement or the which any prospectus then in use or the initiation or threat of any proceeding for that purpose, and (C) of the suspension of the qualification of any Registrable Securities included in relating to such registration statement for sale in any jurisdiction;
(vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants as shall be necessary to enable them to conduct a reasonable investigation within the meaning of the Securities Act; and
(viii) pay all costs and expenses incident to the performance and compliance by Seller with the provisions of this Section 6.1, including without limitation, (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitation, the entire expense of any special audits required by the rules and regulations of the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall (i) not later that the third business day following the Closing prepare and file with Nasdaq contains or would contain an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Closing necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities exchange or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchange.
(d) If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Date or (B) declared effective by the SEC on or before the Effectiveness Date, (ii) on any day after the Registration Statement has been declared effective by the SEC (A) sales of the Registrable Securities required to be included on the Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Shares held by Purchaser and (II) $100, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the SEC; provided, however, that there shall be excluded from such period any delays which are solely attributable to changes required by Purchaser in the Registration Statement with respect to information relating to Purchaser, (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Amendment) of the Shares and the Exercise Price (as defined in the Warrant Agreement) shall be decreased 2% on the date of such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser in cash on the last business day of each month during which an Event has occurred and is continuing. In the event Seller fails to make a Registration Delay Payment in a timely manner, such Registration Delay Payment shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in full.
(i) Seller will indemnify and hold harmless Purchaser and each person, if any, who Controls (as defined below) Purchaser from and against any and all losses, claims, damages, liabilities and legal and other expenses (including costs of investigation) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which regarding such seller or such seller's intended method of distribution of such Registrable Securities were registered under the Securities Act, Shares or omits or would omit to state any prospectus material fact regarding such seller or preliminary prospectus contained its intended method of distribution of such Registrable Shares required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly to furnish to the Company any amendment additional information required to correct and update any previously furnished information or supplement theretorequired so that such prospectus shall not contain, with respect to such seller or caused by any omission the distribution of such Registrable Shares, an untrue statement of a material fact or alleged omission omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made, except then existing.
(h) In addition to the extent foregoing provisions of this Section 5 and not in limitation thereof, the Company shall have the right to suspend use of the Registration Statement and the related prospectus for a period of up to ninety (90) days if its Board of Directors determines in good faith that there is a valid purpose for such lossessuspension. For purposes of this Agreement, claimsa valid purpose shall include, damagesbut is not limited to, liabilities or expenses are caused by any such untrue statement a good faith determination that the Registration Statement may contain a material misstatement or omission (including as a result of the Company having under consideration a significant acquisition or alleged untrue statement disposition or other material transaction that has not been publicly disclosed) in which case the Company may cause the Registration Statement not to be used by the sellers of Registrable Shares until such time as the SEC has declared effective a post-effective amendment to the Registration Statement filed by the Company or if the misstatement or omission included can be corrected by incorporation by reference in reliance upon the Registration Statement of another SEC filing of the Company, the Company has made another filing on Form 8-K or other appropriate form to correct such misstatement or omission. Notwithstanding the foregoing, the Company may not suspend the use of the Registration Statement and the related prospectus more than two (2) times during any calendar year
(i) The Company shall furnish to the Purchaser such number of copies of a prospectus in conformity with information furnished to Seller in writing by such seller expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) below, a person "Controls" another person if such first person possesses, directly or indirectly, the power to direct or cause the direction requirements of the management Securities Act, and policies such other documents as may reasonably be requested by the Purchaser in order to facilitate the disposition of such second person, whether through the ownership of voting securities, Registrable Shares owned by contract, or otherwisethe Purchaser.
(iij) It The Company shall use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities or Blue Sky laws of such jurisdictions as shall be a condition to reasonably requested by the obligation of Seller to effect a registration of Registrable Securities under the Securities Act pursuant hereto that Purchaser indemnify and hold harmless Seller and each person, if any, who Controls Seller to the same extent as the indemnity from Seller in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller in writing by Purchaser expressly for use in the Registration Statement, any prospectus or preliminary prospectus contained therein or any amendment or supplement theretoPurchaser; provided, however, that the Company shall not be required in connection therewith, or as a condition thereto, to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the absence of fraud the aggregate amount of claims for which Purchaser Company is already subject to service in such jurisdiction and except as may be liable under this paragraph 6.1(e)(ii) shall required by the Securities Act, or in any state where the Company's securities are not exceed the Purchase Price paid by Purchaser for the Securitiesalready traded pursuant to a secondary trading or "Manual" exemption.
(iiik) In case any claim shall be made or any proceeding The Company will use its best efforts to make and keep public information regarding the Company available as those terms are understood and defined in Rule 144 under the Securities Act, at all times from and after ninety (including any governmental investigation90) shall be instituted involving any indemnified party in respect of which indemnity may be sought pursuant to this paragraph (e), such indemnified party shall promptly notify days following the indemnifying party in writing effective date of the same; provided that failure to notify the indemnifying party shall not relieve it from any liability it may have to an indemnified party otherwise than under this paragraph (e). The indemnifying party, upon request of the indemnified party or parties, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaid, (B) the indemnifying party and such indemnified party shall have mutually agreed to the retention of such counsel or (C) representation of such indemnified party initial Registration Statement filed by the counsel retained by Company under the indemnifying party would be inappropriate in the opinion of counsel to such indemnified party due to actual or potential conflicts of interest between such indemnified party and any other party represented by such counsel in such proceedingSecurities Act; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.and
Appears in 1 contract
Samples: Subscription Agreement (Chromatics Color Sciences International Inc)
Securities Act Registration. (a) Seller shall, at Seller's expense, The Buyer shall register under the Securities Act the shares of Common Stock issuable upon conversion to the Sellers pursuant to the terms of this Agreement under the Shares and exercise Securities Act of the Warrants 1933, as amended (collectively, the "Registrable SecuritiesSecurities Act"), in accordance with the provisions of this Section 5.10.
(a) The Buyer shall register the shares of Common Stock issued to the Sellers on the Closing Date for resale by the Sellers pursuant to a registration statement on Form S-3 (the "Resale Registration Statement") and in that connection shall file, by no later than February 22, 2000 (the "Filing Date"), a registration statement with respect to the Registrable Securities with the SEC (the "Registration Statement"). Seller shall use its commercially reasonable best efforts to cause have the Resale Registration Statement to be declared effective under filed with the Securities Act as promptly as possible after Exchange Commission (the filing thereof, but in any event "SEC") on or prior to the that date which is forty (40) days fifth business day after the Buyer has received all financial information from the Filing Date (the "Effectiveness Date"). The number of shares of Common Stock included in the Registration Statement shall at all times be at least equal to 100% of the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants, and shall include any additional Registrable Securities issuable to Purchaser in connection with the First Closing which were not included on the registration statements filed in connection with the First Closing, without regard to any limitation on Purchaser's ability to convert the Shares or exercise the Warrants. Notice of effectiveness of the Registration Statement shall be furnished promptly to Purchaser. Seller shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement and from time to time will amend or supplement such Registration Statement Gordxx Xxxs and the prospectus contained therein as and Subsidiary necessary for the Buyer to prepare the extent necessary to comply with the Securities Act to permit the sale of the Registrable Securities by Purchaser. Seller shall use its commercially reasonable best efforts to maintain the effectiveness of the Resale Registration Statement with respect to the Registrable Securities until all of the Registrable Shares have been sold by Purchaser pursuant thereto or such date as all of the Registrable Securities may be sold by Purchaser without registrationStatement.
(b) As a condition to the inclusion of the Registrable Securities in the Registration Statement, Purchaser will furnish to Seller such information with respect to Purchaser as is required to be disclosed in the Registration Statement (and the prospectus included therein) by the applicable rules, regulations and guidelines of the SEC.
(c) In connection with the each registration of Registrable Securities the shares of Common Stock under the Securities Act, Seller Act contemplated by this Section 5.10 the Buyer shall:
(i) prepare and file with the SEC a Resale Registration Statement on the appropriate form with respect to such Registrable Securities shares of Common Stock and use its commercially reasonable best efforts to cause such Resale Registration Statement to become effective as soon as practicable after such filing;
(ii) prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) to the any Resale Registration Statement Statements covering such Registrable Securities shares of Common Stock and the prospectus used in connection therewith as may be necessary to keep such Resale Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities shares of Common Stock covered by such Registration Statement thereby until such time as the expiration of the earlier of the sale of all of the Registrable Securities registered thereunder have been disposed shares of in accordance with Common Stock covered thereby or the intended method expiration of disposition three hundred and sixty (360) days after the effective date thereof, including without limitation, any such amendments necessary to register for resale by Purchaserthe Sellers any shares of Common Stock issued pursuant to Section 1.2(h);
(iii) in the case of a Resale Registration Statement furnish to Purchaser the Sellers holding the shares of such Registrable Securities Common Stock registered under the Securities Act thereunder such number of copies of a prospectus and preliminary prospectus in conformity with the requirements of the Securities Act, and such other documents as Purchaser such holders may reasonably request, in order to facilitate the public sale or other disposition of such Registrable Securitiesshares of Common Stock;
(iv) notify Purchaser each Seller holding shares of such Registrable Securities Common Stock registered thereunder if, at any time when a prospectus relating to the sale of such Registrable Securities shares of Common Stock is required to be delivered under the Securities ActAct in connection with a registration effected by the Buyer, any event shall have occurred as a result of which the prospectus then in use with respect to such Registrable Securities shares of Common Stock would include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made or for any other reason it shall be necessary to amend or supplement such prospectus in order to comply with the Securities Act, and prepare and furnish to Purchaser a reasonable number of copies of a supplement to or an amendment of such prospectus which will correct such statement or omission or effect such compliance;
(v) use its commercially reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as Purchaser shall reasonably request, to keep such registrations and qualifications in effect for so long as the Registration Statement referred to in paragraph 6.1(c)(i) above remains in effect, and to do any and all other acts and things which may be necessary or desirable to enable Purchaser to consummate the public sale or other disposition in each such jurisdiction of such Registrable Securities owned by Purchaser; provided, however, that Seller will not be required to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) or (B) consent to general service of process in any such jurisdiction;
(vi) keep the Purchaser informed of Seller's best estimate of the earliest date on which such Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser of the following: (A) when such Registration Statement or any post-effective amendment or supplement thereto becomes effective or is approved, (B) of the issuance by any competent authority of any stop order suspending the effectiveness or qualification of such Registration Statement or the prospectus then in use or the initiation or threat of any proceeding for that purpose, and (C) of the suspension of the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction;
(vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants as shall be necessary to enable them to conduct a reasonable investigation within the meaning of the Securities Act; and
(viii) pay all costs and expenses incident to the performance and compliance by Seller with the provisions of this Section 6.1, including without limitation, (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitation, the entire expense of any special audits required by the rules and regulations of the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall (i) not later that the third business day following the Closing prepare and file with Nasdaq an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Closing necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities exchange or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchange.
(d) If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Date or (B) declared effective by the SEC on or before the Effectiveness Date, (ii) on any day after the Registration Statement has been declared effective by the SEC (A) sales of the Registrable Securities required to be included on the Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Shares held by Purchaser and (II) $100, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the SEC; provided, however, that there shall be excluded from such period any delays which are solely attributable to changes required by Purchaser in the Registration Statement with respect to information relating to Purchaser, (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Amendment) of the Shares and the Exercise Price (as defined in the Warrant Agreement) shall be decreased 2% on the date of such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser in cash on the last business day of each month during which an Event has occurred and is continuing. In the event Seller fails to make a Registration Delay Payment in a timely manner, such Registration Delay Payment shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in full.
(i) Seller will indemnify and hold harmless Purchaser and each person, if any, who Controls (as defined below) Purchaser from and against any and all losses, claims, damages, liabilities and legal and other expenses (including costs of investigation) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Act, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made, except to the extent that such losses, claims, damages, liabilities or expenses are caused by any such untrue statement or omission or alleged untrue statement or omission included in reliance upon and in conformity with information furnished to Seller in writing by such seller expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) below, a person "Controls" another person if such first person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such second person, whether through the ownership of voting securities, by contract, or otherwise.
(ii) It shall be a condition to the obligation of Seller to effect a registration of Registrable Securities under the Securities Act pursuant hereto that Purchaser indemnify and hold harmless Seller and each person, if any, who Controls Seller to the same extent as the indemnity from Seller in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller in writing by Purchaser expressly for use in the Registration Statement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto; provided, however, that in the absence of fraud the aggregate amount of claims for which Purchaser may be liable under this paragraph 6.1(e)(ii) shall not exceed the Purchase Price paid by Purchaser for the Securities.
(iii) In case any claim shall be made or any proceeding (including any governmental investigation) shall be instituted involving any indemnified party in respect of which indemnity may be sought pursuant to this paragraph (e), such indemnified party shall promptly notify the indemnifying party in writing of the same; provided that failure to notify the indemnifying party shall not relieve it from any liability it may have to an indemnified party otherwise than under this paragraph (e). The indemnifying party, upon request of the indemnified party or parties, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaid, (B) the indemnifying party and such indemnified party shall have mutually agreed to the retention of such counsel or (C) representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate in the opinion of counsel to such indemnified party due to actual or potential conflicts of interest between such indemnified party and any other party represented by such counsel in such proceeding; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.state
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chromatics Color Sciences International Inc)
Securities Act Registration. (a) Seller shall, at Seller's expense, register Whenever required under the Securities Act the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants (collectively, the "Registrable Securities") and in that connection shall file, by no later than February 22, 2000 (the "Filing Date"), a registration statement with respect this Agreement to the Registrable Securities with the SEC (the "Registration Statement"). Seller shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event on or prior the that date which is forty (40) days from the Filing Date (the "Effectiveness Date"). The number of shares of Common Stock included in the Registration Statement shall at all times be at least equal to 100% of the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants, and shall include any additional Registrable Securities issuable to Purchaser in connection with the First Closing which were not included on the registration statements filed in connection with the First Closing, without regard to any limitation on Purchaser's ability to convert the Shares or exercise the Warrants. Notice of effectiveness of the Registration Statement shall be furnished promptly to Purchaser. Seller shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement and from time to time will amend or supplement such Registration Statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act to permit the sale of the Registrable Securities by Purchaser. Seller shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement with respect to the Registrable Securities until all of the Registrable Shares have been sold by Purchaser pursuant thereto or such date as all of the Registrable Securities may be sold by Purchaser without registration.
(b) As a condition to the inclusion of the Registrable Securities in the Registration Statement, Purchaser will furnish to Seller such information with respect to Purchaser as is required to be disclosed in the Registration Statement (and the prospectus included therein) by the applicable rules, regulations and guidelines of the SEC.
(c) In connection with effect the registration of Registrable any Registerable Securities under the Securities Act, Seller SH Celera shall, as expeditiously as possible:
(i) prepare a. Prepare and file with the SEC Securities and Exchange Commission ("SEC") a Registration Statement on the appropriate form with respect to such Registrable Registerable Securities and use its commercially reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after and to remain effective until all Registerable Securities are distributed pursuant to such filingRegistration Statement, notwithstanding any Termination;
(ii) prepare b. Prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) to the such Registration Statement covering such Registrable Securities and the prospectus used in connection therewith with such Registration Statement ("Amended Registration Statement") or prepare and file any additional registration statement ("Additional Registration Statement," together with the Amended Registration Statement, "Supplemental Registration Statements") as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities securities covered by such Supplemental Registration Statement until Statements or such time as prior registration statement and to cover the distribution of all Registerable Securities.
c. Furnish to the Company, and if required, each of the Registrable Securities registered thereunder have been disposed of in accordance with the intended method of disposition by Purchaser;
(iii) furnish to Purchaser of its shareholders, such Registrable Securities registered under the Securities Act such number numbers of copies of a prospectus and prospectus, including a preliminary prospectus prospectus, in conformity with the requirements of the Securities Act, and such other documents as Purchaser they may reasonably request, request in order to facilitate the public sale or other disposition of Registerable Securities owned by them.
d. Use its best efforts to register and qualify the securities covered by such Registrable Securities;
(iv) notify Purchaser Registration Statement under such other securities or Blue Sky laws of the jurisdictions in which the Company's shareholders are located, of such Registrable Securities ifother jurisdictions as shall be reasonably requested by the Company and of all other jurisdictions where legally required.
e. As promptly as practicable after becoming aware of such event, at any time when a prospectus relating to such Registrable Securities is required to be delivered under notify the Securities Act, Company of the happening of any event shall have occurred of which SH Celera has knowledge, as a result of which the prospectus included in the Registration Statement, as then in use with respect to such Registrable Securities would include effect, includes an untrue statement of a material fact or omit omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances under which made they were made, not misleading, use its best efforts promptly to prepare a supplement or for any other reason it shall be necessary amendment to amend the Registration Statement to correct such untrue statement or supplement such prospectus in order to comply with the Securities Actomission, and prepare and furnish to Purchaser deliver a reasonable number of copies of a such supplement or amendment to or an amendment of such prospectus which will correct such statement or omission or effect such compliance;
(v) use its commercially reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions the Company as Purchaser shall it may reasonably request, to keep such registrations and qualifications in effect for so long as .
f. Provide the Registration Statement referred to in paragraph 6.1(c)(i) above remains in effect, and to do any and all other acts and things which may be necessary or desirable to enable Purchaser to consummate the public sale or other disposition in each such jurisdiction of such Registrable Securities owned by Purchaser; provided, however, that Seller will not be required to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) or (B) consent to general service of process in any such jurisdiction;
(vi) keep the Purchaser informed of Seller's best estimate Company with notice of the earliest date on which such that a Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser Amended Registration Statement registering the resale of the following: (A) Registerable Securities is declared effective by the SEC, and the date or dates when such the Registration Statement is no longer effective;
g. Provide the Company the opportunity to review the Registration Statement and all amendments or any post-effective amendment or supplement supplements thereto becomes effective or is approved, prior to their filing with the SEC by giving the Company at least ten (B10) business days advance written prior to such filing.
h. Provide the Company with prompt notice of the issuance by the SEC or any competent authority state securities commission or agency of any stop order suspending the effectiveness or qualification of such the Registration Statement or the prospectus then in use or the initiation or threat of any proceeding for that such purpose, and (C) of . SH Celera shall use its best efforts to prevent the suspension of the qualification issuance of any Registrable Securities included in such registration statement for sale in stop order and, if any jurisdiction;
(vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants as shall be necessary to enable them to conduct a reasonable investigation within the meaning of the Securities Act; and
(viii) pay all costs and expenses incident to the performance and compliance by Seller with the provisions of this Section 6.1, including without limitation, (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitation, the entire expense of any special audits required by the rules and regulations of the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall (i) not later that the third business day following the Closing prepare and file with Nasdaq an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Closing necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities exchange or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchange.
(d) If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Date or (B) declared effective by the SEC on or before the Effectiveness Date, (ii) on any day after the Registration Statement has been declared effective by the SEC (A) sales of the Registrable Securities required to be included on the Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effectiveissued, to disclose such information as is necessary for sales to be made pursuant to obtain the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Shares held by Purchaser and (II) $100, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the SEC; provided, however, that there shall be excluded from such period any delays which are solely attributable to changes required by Purchaser in the Registration Statement with respect to information relating to Purchaser, (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Amendment) of the Shares and the Exercise Price (as defined in the Warrant Agreement) shall be decreased 2% on the date of such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser in cash on the last business day of each month during which an Event has occurred and is continuing. In the event Seller fails to make a Registration Delay Payment in a timely manner, such Registration Delay Payment shall bear interest removal thereof at the rate of 2.0% per month (prorated for partial months) until paid in fullearliest possible date.
(i) Seller will indemnify and hold harmless Purchaser and each person, if any, who Controls (as defined below) Purchaser from and against any and all losses, claims, damages, liabilities and legal and other expenses (including costs of investigation) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Act, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made, except to the extent that such losses, claims, damages, liabilities or expenses are caused by any such untrue statement or omission or alleged untrue statement or omission included in reliance upon and in conformity with information furnished to Seller in writing by such seller expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) below, a person "Controls" another person if such first person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such second person, whether through the ownership of voting securities, by contract, or otherwise.
(ii) It shall be a condition to the obligation of Seller to effect a registration of Registrable Securities under the Securities Act pursuant hereto that Purchaser indemnify and hold harmless Seller and each person, if any, who Controls Seller to the same extent as the indemnity from Seller in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller in writing by Purchaser expressly for use in the Registration Statement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto; provided, however, that in the absence of fraud the aggregate amount of claims for which Purchaser may be liable under this paragraph 6.1(e)(ii) shall not exceed the Purchase Price paid by Purchaser for the Securities.
(iii) In case any claim shall be made or any proceeding (including any governmental investigation) shall be instituted involving any indemnified party in respect of which indemnity may be sought pursuant to this paragraph (e), such indemnified party shall promptly notify the indemnifying party in writing of the same; provided that failure to notify the indemnifying party shall not relieve it from any liability it may have to an indemnified party otherwise than under this paragraph (e). The indemnifying party, upon request of the indemnified party or parties, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaid, (B) the indemnifying party and such indemnified party shall have mutually agreed to the retention of such counsel or (C) representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate in the opinion of counsel to such indemnified party due to actual or potential conflicts of interest between such indemnified party and any other party represented by such counsel in such proceeding; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
Appears in 1 contract
Samples: Mutual Undertaking Agreement (G/O International Inc)
Securities Act Registration. (a) Seller shall, at Seller's expense, 3.1. The Corporation shall use its best efforts to register for resale under the Securities Act of 1933, as amended (the shares of Common Stock issuable upon conversion "Securities Act"), at the Corporation's expense, all of the Shares and exercise of for which the Warrants Subscriber has subscribed hereunder (collectively, the "Registrable SecuritiesShares") and in that connection shall file, by no later than February 22, 2000 (the "Filing Date"), file a registration statement Registration Statement on Form S-1 with respect to the Registrable Securities with the SEC Shares (the "Resale Registration Statement"). Seller shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under ) with the Securities Act as promptly as possible after the filing thereof, but in any event on or prior the that date which is forty and Exchange Commission (40"SEC") within one hundred ninety- five (195) days from the Filing Date (the "Effectiveness Date"). The number of shares of Common Stock included in the Registration Statement shall at all times be at least equal to 100% of the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants, and shall include any additional Registrable Securities issuable to Purchaser in connection with the First Closing which were not included on the registration statements filed in connection with the First Closing, without regard to any limitation on Purchaser's ability to convert the Shares or exercise the Warrantsdate hereof. Notice of effectiveness of the Resale Registration Statement shall be furnished promptly to Purchaserthe Subscriber. Seller The Corporation shall use its commercially reasonable best efforts to maintain the effectiveness of the Resale Registration Statement and from time to time will amend or supplement such Registration Statement registration statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act. The effectiveness of the Resale Registration Statement shall be maintained with respect to Registrable Shares until the later to occur of the second anniversary of the Closing Date or such date as the Registrable Shares may be sold pursuant to Rule 144(k) under the Securities Act or otherwise without registration. The Corporation may, however, require the Subscriber to permit the sale suspend sales of the Registrable Securities by PurchaserShares pursuant to the Resale Registration Statement for a reasonable period not to exceed 30 days if the Corporation determines in good faith that such sales might (1) interfere with or affect the negotiation or completion of any transaction at the time the right to suspend sales is exercised or (2) involve initial or continuing disclosure obligations that might not be in the best interests of the Corporation or for which required information is not reasonably available. Seller The Resale Registration Statement and any registration statement filed pursuant to Section 3.2 below is sometimes also referred to as a "Registration Statement."
3.2. So long as the Registrable Shares shall exceed three percent (3%) of the number of issued and outstanding shares of Common Stock of the Corporation, if the Corporation shall determine to register any of its securities for its own account or the account of a security holder or holders ("Other Holders") in respect of a registered public offering involving an underwriting, the Corporation will promptly give the Subscriber written notice thereof and use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement with respect to the Registrable Securities until include in such registration and underwriting all of the Registrable Shares have been sold specified in a written request made by Purchaser pursuant thereto the Subscriber within 20 days after the written notice from the Corporation to the Subscriber. Such written request may specify all or such date as all part of the Subscriber's Registrable Securities may be sold Shares.
(a) The Subscriber shall, together with the Corporation and the Other Holders enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by Purchaser without registrationthe Corporation.
(b) As If the representative of the underwriters advises the Corporation in writing that marketing factors require a condition limitation on the number of shares to be underwritten, the representative may exclude all Registrable Shares from, or limit the number of Registrable Shares to be included in, the registration and underwriting. The Corporation shall so advise all holders of securities requesting registration and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated first to the inclusion of the Registrable Securities Corporation for securities being sold for its own account and thereafter as set forth in the Registration Statement, Purchaser will furnish to Seller such information with respect to Purchaser as is required to be disclosed in the Registration Statement Subsection (and the prospectus included thereinc) by the applicable rules, regulations and guidelines of the SECbelow.
(c) In connection with the registration of Registrable Securities under the Securities Act, Seller shall:
(i) prepare and file with the SEC a Registration Statement on the appropriate form with respect to such Registrable Securities and use its commercially reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after such filing;
(ii) prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) to the Registration Statement covering such Registrable Securities and the prospectus used any circumstances in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement until such time as which all of the Registrable Securities registered thereunder have been disposed Shares and shares of Other Holders requested to be included in accordance with a registration cannot be so included for the intended method reason set forth in Subsection (b) above, the number of disposition Registrable Shares and shares of Other Holders that may be so included shall be allocated among the Subscriber and Other Holders requesting inclusion of securities pro rata on the basis of the number of Registrable Shares and the number of shares of Other Holders requested to be included by Purchaser;the Subscriber and the Other Holders, respectively.
(iii) furnish to Purchaser of such Registrable Securities registered 3.3. In the event that the Corporation registers under the Securities Act such number of copies of a prospectus and preliminary prospectus in conformity with the requirements of the Securities Act, and such other documents as Purchaser may reasonably request, in order to facilitate the public sale or other disposition of such Registrable Securities;
(iv) notify Purchaser of such Registrable Securities if, at any time when a prospectus relating to such Registrable Securities is required to be delivered under the Securities Act, any event shall have occurred as a result of which the prospectus then in use with respect to such Registrable Securities would include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made or for any other reason it shall be necessary to amend or supplement such prospectus in order to comply with the Securities Act, and prepare and furnish to Purchaser a reasonable number of copies of a supplement to or an amendment of such prospectus which will correct such statement or omission or effect such compliance;
(v) use its commercially reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as Purchaser shall reasonably request, to keep such registrations and qualifications in effect for so long as the Registration Statement referred to in paragraph 6.1(c)(i) above remains in effect, and to do any and all other acts and things which may be necessary or desirable to enable Purchaser to consummate the public sale or other disposition in each such jurisdiction of such Registrable Securities owned by Purchaser; provided, however, that Seller will not be required to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) or (B) consent to general service of process in any such jurisdiction;
(vi) keep the Purchaser informed of Seller's best estimate of the earliest date on which such Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser of the following: (A) when such Registration Statement or any post-effective amendment or supplement thereto becomes effective or is approved, (B) of the issuance by any competent authority of any stop order suspending the effectiveness or qualification of such Registration Statement or the prospectus then in use or the initiation or threat of any proceeding for that purpose, and (C) of the suspension of the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction;
(vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants as shall be necessary to enable them to conduct a reasonable investigation within the meaning of the Securities Act; and
(viii) pay all costs and expenses incident to the performance and compliance by Seller with the provisions of this Section 6.1, including without limitation, (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitation, the entire expense of any special audits required by the rules and regulations of the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall (i) not later that the third business day following the Closing prepare and file with Nasdaq an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Closing necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities exchange or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchange.
(d) If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Date or (B) declared effective by the SEC on or before the Effectiveness Date, (ii) on any day after the Registration Statement has been declared effective by the SEC (A) sales of the Registrable Securities required to be included on the Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Shares held by Purchaser and (II) $100the Subscriber, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the SEC; provided, however, that there Corporation shall be excluded from such period any delays which are solely attributable to changes required by Purchaser in the Registration Statement with respect to information relating to Purchaser, (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Amendment) of the Shares and the Exercise Price (as defined in the Warrant Agreement) shall be decreased 2% on the date of such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser in cash on the last business day of each month during which an Event has occurred and is continuing. In the event Seller fails to make a Registration Delay Payment in a timely manner, such Registration Delay Payment shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in full.
(i) Seller will indemnify and hold harmless Purchaser the Subscriber and each underwriter of such shares (including any broker or dealer through whom such of the shares may be sold) and each person, if any, who Controls controls the Subscriber or any such underwriter within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (as defined belowthe "Exchange Act") Purchaser from and against any and all losses, claims, damages, liabilities expenses or liabilities, joint or several, to which they or any of them become subject under the Securities Act or the Exchange Act or otherwise, and, except as hereinafter provided, shall reimburse the Subscriber and each of the underwriters and each such controlling person, if any, for any legal and or other expenses (including costs reasonably incurred by them or any of investigation) caused by them in connection with investigating or defending any actions whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in any the Registration Statement under which such Registrable Securities were registered under the Securities Act, any prospectus or preliminary prospectus contained therein or any amendment or supplement theretoStatement, or caused in the prospectus (or the registration statement or prospectus as from time to time amended or supplemented by any the Corporation) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading in light of the circumstances under which mademisleading, except to the extent that such losses, claims, damages, liabilities or expenses are caused by any unless such untrue statement or omission was made in such Registration Statement or alleged untrue statement or omission included prospectus in reliance upon and in conformity with information furnished to Seller in writing to the Corporation in connection therewith by the Subscriber (insofar as indemnification of the Subscriber is concerned) or any underwriter (insofar as indemnification of any such seller underwriter is concerned) relating thereto expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) below, a person "Controls" another person if such first person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such second person, whether through the ownership of voting securities, by contract, or otherwise.
(ii) It shall be a condition to the obligation of Seller to effect a registration of Registrable Securities under the Securities Act pursuant hereto that Purchaser indemnify and hold harmless Seller and each person, if any, who Controls Seller to the same extent as the indemnity from Seller in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller in writing by Purchaser expressly for use in the Registration Statement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto; provided, however, that in the absence of fraud the aggregate amount of claims for which Purchaser may be liable under this paragraph 6.1(e)(ii) shall not exceed the Purchase Price paid by Purchaser for the Securities.
(iii) In case any claim shall be made or any proceeding (including any governmental investigation) shall be instituted involving any indemnified party in respect of which indemnity may be sought pursuant to this paragraph (e), such indemnified party shall promptly notify the indemnifying party in writing of the same; provided that failure to notify the indemnifying party shall not relieve it from any liability it may have to an indemnified party otherwise than under this paragraph (e). The indemnifying party, upon request of the indemnified party or parties, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaid, (B) the indemnifying party and such indemnified party shall have mutually agreed to the retention of such counsel or (C) representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate in the opinion of counsel to such indemnified party due to actual or potential conflicts of interest between such indemnified party and any other party represented by such counsel in such proceeding; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.use
Appears in 1 contract
Samples: Subscription Agreement (Prosoft I Net Solutions Inc)
Securities Act Registration. (a) Seller shall, at Seller's expense, register under the Securities Act the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants (collectively, the "Registrable Securities") and in that connection shall file, by no later than February 22, 2000 (the "Filing Date"), a registration statement with respect to the Registrable Securities with the SEC (the "Registration Statement"). Seller a. The Company shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event on or prior the that date which is forty (40) days from the Filing Date (the "Effectiveness Date"). The number of shares of Common Stock included in the Registration Statement shall at all times be at least equal to 100% of the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants, and shall include any additional Registrable Securities issuable to Purchaser in connection with the First Closing which were not included on the registration statements filed in connection with the First Closing, without regard to any limitation on Purchaser's ability to convert the Shares or exercise the Warrants. Notice of effectiveness of the Registration Statement shall be furnished promptly to Purchaser. Seller shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement and from time to time will amend or supplement such Registration Statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act to permit the sale of the Registrable Securities by Purchaser. Seller shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement with respect to the Registrable Securities until all of the Registrable Shares have been sold by Purchaser pursuant thereto or such date as all of the Registrable Securities may be sold by Purchaser without registration.
(b) As a condition to the inclusion of the Registrable Securities in the Registration Statement, Purchaser will furnish to Seller such information with respect to Purchaser as is required to be disclosed in the Registration Statement (and the prospectus included therein) by the applicable rules, regulations and guidelines of the SEC.
(c) In connection with the registration of Registrable Securities under the Securities Act, Seller shallto:
(i) prepare i. Prepare and file with the SEC a Registration Statement registration statement on Form S-1 relating to the appropriate form with respect shares of Company common stock issuable upon conversion of the Preferred Stock within thirty (30) days of the date hereof naming Pinnacle as a selling shareholder and keep such registration statement effective for until Pinnacle can sell such shares without restriction under Rule 144(k). In the event that the registration statement is not declared effective within sixty (60) days of the date hereof, the Company shall pay Pinnacle within three (3) business days at the end of each month a cash payment equal to such Registrable Securities two percent (2%) per month as liquated damages and use its commercially reasonable best efforts to cause such Registration Statement to become effective not as soon as practicable after such filing;a penalty.
(ii) prepare . Prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) to the Registration Statement covering such Registrable Securities registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities securities covered by such Registration Statement until such time as all registration statement and notify the holders of the Registrable Securities registered thereunder have been disposed filing and effectiveness of in accordance with the intended method of disposition by Purchasersuch Registration statement and any amendments or supplements;
(iii) furnish . Furnish to Purchaser of Pinnacle such Registrable Securities registered under the Securities Act such number numbers of copies of a prospectus and current prospectus, including a preliminary prospectus in conformity prospectus, conforming with the requirements of the Securities 1933 Act, copies of the registration statement any amendment or supplement to any thereof and any documents incorporated by reference therein, and such other documents as Purchaser Pinnacle may reasonably request, require in order to facilitate the public sale or other disposition of such Registrable Securitiesthe shares of Common Stock issuable under the Preferred Stock;
(iv) notify Purchaser . Use its best efforts to register and qualify the securities covered by such registration statement under such other securities or "Blue Sky" laws of such Registrable Securities if, at any time when a prospectus relating to such Registrable Securities is required to jurisdictions as shall be delivered under reasonably requested by Pinnacle;
v. Notify Pinnacle immediately of the Securities Act, happening of any event shall have occurred as a result of which the prospectus included in such registration statement, as then in use with respect to such Registrable Securities would include effect, includes an untrue statement of a material fact or omit omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made or for any other reason it shall be necessary to amend or supplement such prospectus in order to comply with the Securities Actthen existing, and prepare and furnish to Purchaser a reasonable number of copies of a supplement to or an amendment of such prospectus which will correct such statement or omission or effect such compliance;
(v) use its commercially reasonable best efforts to register or qualify promptly update and/or correct such Registrable Securities prospectus.
b. Upon request of the Company, Pinnacle will furnish to the Company in connection with any registration under this Section such other information regarding itself, the securities or blue sky laws of the Company held by it, and the intended method of disposition of such jurisdictions as Purchaser shall reasonably request, to keep such registrations and qualifications in effect for so long as the Registration Statement referred to in paragraph 6.1(c)(i) above remains in effect, and to do any and all other acts and things which may be necessary or desirable to enable Purchaser to consummate the public sale or other disposition in each such jurisdiction of such Registrable Securities owned by Purchaser; provided, however, that Seller will not be required to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) or (B) consent to general service of process in any such jurisdiction;
(vi) keep the Purchaser informed of Seller's best estimate of the earliest date on which such Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser of the following: (A) when such Registration Statement or any post-effective amendment or supplement thereto becomes effective or is approved, (B) of the issuance by any competent authority of any stop order suspending the effectiveness or qualification of such Registration Statement or the prospectus then in use or the initiation or threat of any proceeding for that purpose, and (C) of the suspension of the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction;
(vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants securities as shall be necessary reasonably required to enable them to conduct a reasonable investigation affect the registration of the securities held by Pinnacle.
i. To the fullest extent permitted by law, the Company shall indemnify, defend and hold harmless Pinnacle and each of its officers, directors, employees, agents, partners or controlling persons (within the meaning of the Securities Act; and
0000 Xxx) (viiieach, an "indemnified party") pay from and against, and shall reimburse such indemnified party with respect to, any and all claims, suits, demands, causes of action, losses, damages, liabilities, costs and or expenses incident ("Liabilities") to which such indemnified party may become subject under the performance and compliance by Seller with the provisions of this Section 6.11933 Act or otherwise, including without limitation, arising from or relating to (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitation, the entire expense of any special audits required by the rules and regulations of the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall (i) not later that the third business day following the Closing prepare and file with Nasdaq an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Closing necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities exchange or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchange.
(d) If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Date or (B) declared effective by the SEC on or before the Effectiveness Date, (ii) on any day after the Registration Statement has been declared effective by the SEC (A) sales of the Registrable Securities required to be included on the Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Shares held by Purchaser and (II) $100, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the SEC; provided, however, that there shall be excluded from such period any delays which are solely attributable to changes required by Purchaser in the Registration Statement with respect to information relating to Purchaser, (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Amendment) of the Shares and the Exercise Price (as defined in the Warrant Agreement) shall be decreased 2% on the date of such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser in cash on the last business day of each month during which an Event has occurred and is continuing. In the event Seller fails to make a Registration Delay Payment in a timely manner, such Registration Delay Payment shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in full.
(i) Seller will indemnify and hold harmless Purchaser and each person, if any, who Controls (as defined below) Purchaser from and against any and all losses, claims, damages, liabilities and legal and other expenses (including costs of investigation) caused by any untrue statement or alleged untrue statement of a any material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Actregistration statement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto, or caused by any (B) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances under in which they were made, except not misleading; PROVIDED, HOWEVER, that the Company shall not be liable in any such case to the extent that such losses, claims, damages, liabilities or expenses are caused by any such Liability arises out of or is based upon an untrue statement or omission so made in strict conformity with information furnished by such indemnified party in writing specifically for use in the registration statement.
ii. Pinnacle agrees to indemnity, defend and hold harmless the Company, and its officers, directors, employees, agents, partners, or controlling persons (within the meaning of the 0000 Xxx) (each, an "indemnified party") from and against, and shall reimburse such indemnified party with respect to, any and all Liabilities to which such indemnified party may become subject under the 1933 Act or otherwise, arising from or relating to (A) any untrue statement or alleged untrue statement or omission included of any material fact contained in reliance upon and in conformity with information furnished to Seller in writing by such seller expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) below, a person "Controls" another person if such first person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such second person, whether through the ownership of voting securities, by contract, or otherwise.
(ii) It shall be a condition to the obligation of Seller to effect a registration of Registrable Securities under the Securities Act pursuant hereto that Purchaser indemnify and hold harmless Seller and each person, if any, who Controls Seller to the same extent as the indemnity from Seller in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller in writing by Purchaser expressly for use in the Registration Statementstatement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto, or (B) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; providedPROVIDED, howeverTHAT Pinnacle will be liable in any such case to the extent and only to the extent, that any such Liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, prospectus or amendment or supplement thereto in reliance upon and in conformity with written information furnished by Pinnacle specifically for use in the absence of fraud the aggregate amount of claims for which Purchaser preparation thereof, and such Liability may be liable under this paragraph 6.1(e)(ii) shall not in no event exceed the Purchase Price paid by Purchaser for value of the Securitiesregistrable securities so registered.
(iii) In case any claim shall be made or any proceeding (including any governmental investigation) shall be instituted involving . Promptly after receipt by any indemnified party in respect of which indemnity may be sought pursuant to this paragraph (e)notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against another party (the "indemnifying party") hereunder, notify such party in writing thereof, but the omission so to notify such party shall promptly not relieve such party from any Liability which it may have to the indemnified party other than under this Section and shall only relieve it from any Liability which it may have to the indemnified party under this Section if and to the extent an indemnifying party is materially prejudiced by such omission. In case any such action shall be brought against any indemnified party and such indemnified party shall notify an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in writing and, to the extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified party, and, after notice from the indemnifying party to the indemnified party of its election so to assume and undertake the same; provided that failure to notify defense thereof, the indemnifying party shall not relieve it from any liability it may have be liable to an the indemnified party otherwise than under this paragraph (e). The Section for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected; PROVIDED, HOWEVER, that if the defendants in any such action include both parties and the indemnified party shall have reasonably concluded that there may be reasonable defenses available to them which are different from or additional to those available to the indemnifying party, upon request party or if the interests of the indemnified party or partiesreasonably may be deemed to conflict with the interests of the indemnifying party, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but select a separate counsel and to assume such legal defenses and otherwise to participate in the fees and disbursements defense of such action, with the reasonable expenses and fees of one such separate counsel and other reasonable expenses related to such participation to be reimbursed by the indemnifying party as incurred.
d. With respect to the above-referenced registration statement, all fees, costs and expenses of and incidental to such registration, inclusion and public offering shall be at borne by the expense Company, except any underwriting discounts and commissions.
e. The rights to cause the Company to register all or any portion of securities pursuant to this Section 8 may be assigned by Pinnacle to a proper transferee or assignee as described herein. Within a reasonable time after such transfer, Pinnacle shall notify the Company of the name and address of such indemnified party unless transferee or assignee, and the securities with respect to which such registration rights are being assigned. Such assignment shall be effective only if, (i) Pinnacle agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within a reasonable time after such transfer or assignment (subject to the purchase price of the shares being kept confidential by Pinnacle and such transferee or assignee, (ii) the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaidname and address of such transferee or assignee, (B) the indemnifying party securities with respect to which such registration rights are being assigned, (iii) following such transfer or assignment, the further disposition of the securities by the transferee or assignee is restricted under the 1933 Act and applicable state securities laws, (iv) at or before the time that the Company receives the written notice contemplated by clause (ii) of this sentence the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein, (v) such indemnified party transfer shall have mutually agreed to been made in accordance with the retention applicable requirements of the purchase agreement covering the transaction and (vi) such counsel or (C) representation transferee shall be an "accredited investor", as that term is defined in Rule 501 of such indemnified party by Regulation D, promulgated under the counsel retained by the indemnifying party would be inappropriate in the opinion of counsel to such indemnified party due to actual or potential conflicts of interest between such indemnified party and any other party represented by such counsel in such proceeding; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment1933 Act.
Appears in 1 contract
Samples: Agreement to Cancel Secured Promissory Note and Pledge Agreement (Stratus Services Group Inc)
Securities Act Registration. (a) Seller shall, at Seller's expense, register under the Securities Act the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants (collectively, the "Registrable Securities") and in that connection shall file, by no later than February 22June 24, 2000 1999 (the "Filing Date"), a registration statement with respect to the Registrable Securities with the SEC (the "Registration Statement"). Seller shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event on or prior the that date which is forty one hundred twenty (40120) days from the Filing Date filing date (the "Effectiveness Date"). The number of shares of Common Stock included in the Registration Statement shall at all times be at least equal to 100% of the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants, and shall include any additional Registrable Securities issuable to Purchaser in connection with the First Closing which were not included on the registration statements filed in connection with the First Closing, without regard to any limitation on Purchaser's ' ability to convert the Shares or exercise the Warrants. Notice of effectiveness of the Registration Statement shall be furnished promptly to Purchaser. Seller shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement and from time to time will amend or supplement such Registration Statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act to permit the sale of the Registrable Securities by Purchaser. Seller shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement with respect to the Registrable Securities until all of the Registrable Shares have been sold by Purchaser pursuant thereto or such date as all of the Registrable Securities may be sold by Purchaser without registration.
(b) As a condition to the inclusion of the Registrable Securities in the Registration Statement, Purchaser will furnish to Seller such information with respect to Purchaser as is required to be disclosed in the Registration Statement (and the prospectus included therein) by the applicable rules, regulations and guidelines of the SEC.
(c) In connection with the registration of Registrable Securities under the Securities Act, Seller shall:
(i) prepare and file with the SEC a Registration Statement on the appropriate form with respect to such Registrable Securities and use its commercially reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after such filing;
(ii) prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) to the Registration Statement covering such Registrable Securities and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement until such time as all of the Registrable Securities registered thereunder have been disposed of in accordance with the intended method of disposition by Purchaser;
(iii) furnish to Purchaser of such Registrable Securities registered under the Securities Act such number of copies of a prospectus and preliminary prospectus in conformity with the requirements of the Securities Act, and such other documents as Purchaser may reasonably request, in order to facilitate the public sale or other disposition of such Registrable Securities;
(iv) notify Purchaser of such Registrable Securities if, at any time when a prospectus relating to such Registrable Securities is required to be delivered under the Securities Act, any event shall have occurred as a result of which the prospectus then in use with respect to such Registrable Securities would include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made or for any other reason it shall be necessary to amend or supplement such prospectus in order to comply with the Securities Act, and prepare and furnish to Purchaser a reasonable number of copies of a supplement to or an amendment of such prospectus which will correct such statement or omission or effect such compliance;
(v) use its commercially reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as Purchaser shall reasonably request, to keep such registrations and qualifications in effect for so long as the Registration Statement referred to in paragraph 6.1(c)(i) above remains in effect, and to do any and all other acts and things which may be necessary or desirable to enable Purchaser to consummate the public sale or other disposition in each such jurisdiction of such Registrable Securities owned by Purchaser; provided, however, that Seller will not be required to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) or (B) consent to general service of process in any such jurisdiction;
(vi) keep the Purchaser informed of Seller's best estimate of the earliest date on which such Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser of the following: (A) when such Registration Statement or any post-effective amendment or supplement thereto becomes effective or is approved, (B) of the issuance by any competent authority of any stop order suspending the effectiveness or qualification of such Registration Statement or the prospectus then in use or the initiation or threat of any proceeding for that purpose, and (C) of the suspension of the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction;
(vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants as shall be necessary to enable them to conduct a reasonable investigation within the meaning of the Securities Act; and
(viii) pay all costs and expenses incident to the performance and compliance by Seller with the provisions of this Section 6.1, including without limitation, (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitation, the entire expense of any special audits required by the rules and regulations of the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall (i) not later that the third business day following the Initial Closing or the Second Closing, as the case may be, prepare and file with Nasdaq an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Initial Closing or the Second Closing, as the case may be, necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities exchange or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchange.
(d) If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Date or (B) declared effective by the SEC on or before the Effectiveness Date (or in the case of delay in the effectiveness of the Registration Statement caused by "plain english" comments on the Registration Statement from the staff of the SEC, the thirtieth (30th) day after the Effectiveness Date), (ii) on any day after the Registration Statement has been declared effective by the SEC (A) sales of the Registrable Securities required to be included on the Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Shares held by Purchaser and (II) $100, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the SEC; provided, however, that there shall be excluded from such period any delays which are solely attributable to changes required by Purchaser in the Registration Statement with respect to information relating to Purchaser, (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Amendment) of the Shares and the Exercise Price (as defined in the Warrant Agreement) shall be decreased 2% on the date of such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser in cash on the last business day of each month during which an Event has occurred and is continuing. In the event Seller fails to make a Registration Delay Payment in a timely manner, such Registration Delay Payment shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in full.
(i) Seller will indemnify and hold harmless Purchaser and each person, if any, who Controls (as defined below) Purchaser from and against any and all losses, claims, damages, liabilities and legal and other expenses (including costs of investigation) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Act, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made, except to the extent that such losses, claims, damages, liabilities or expenses are caused by any such untrue statement or omission or alleged untrue statement or omission included in reliance upon and in conformity with information furnished to Seller in writing by such seller expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) below, a person "Controls" another person if such first person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such second person, whether through the ownership of voting securities, by contract, or otherwise.
(ii) It shall be a condition to the obligation of Seller to effect a registration of Registrable Securities under the Securities Act pursuant hereto that Purchaser indemnify and hold harmless Seller and each person, if any, who Controls Seller to the same extent as the indemnity from Seller in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller in writing by Purchaser expressly for use in the Registration Statement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto; provided, however, that in the absence of fraud the aggregate amount of claims for which Purchaser may be liable under this paragraph 6.1(e)(ii) shall not exceed the Purchase Price paid by Purchaser for the Securities.
(iii) In case any claim shall be made or any proceeding (including any governmental investigation) shall be instituted involving any indemnified party in respect of which indemnity may be sought pursuant to this paragraph (e), such indemnified party shall promptly notify the indemnifying party in writing of the same; provided that failure to notify the indemnifying party shall not relieve it from any liability it may have to an indemnified party otherwise than under this paragraph (e). The indemnifying party, upon request of the indemnified party or parties, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaid, (B) the indemnifying party and such indemnified party shall have mutually agreed to the retention of such counsel or (C) representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate in the opinion of counsel to such indemnified party due to actual or potential conflicts of interest between such indemnified party and any other party represented by such counsel in such proceeding; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Chromatics Color Sciences International Inc)
Securities Act Registration. (a) Seller shallThe Company shall prepare and file within sixty (60) days following the Effective Date, at Seller's expenseas defined in the merger agreement dated October 31, register under 2005, among the Securities Act the shares of Common Stock issuable upon conversion of the Shares Company, Plaza Acquisition Corp., Plaza Consulting Group, Inc. and exercise of the Warrants (collectively, the "Registrable Securities") and in that connection shall file, by no later than February 22, 2000 Elizabeth Plaza (the "Filing Date"), ) a registration statement with respect to the Registrable Securities with the SEC (the "Registration Rexxxxxxxxxn Statement")) covering the sale of such number of Registrable Shares as the Subscribers shall elect by written notice to the Company, and absent such election, covering the sale of all of the Registrable Shares. Seller The Company shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective by the Commission as soon as possible. Nothing contained herein shall be deemed to limit the number of Registrable Shares to be registered by the Company hereunder.
(b) In addition to the obligation of the Company to file the Registration Statement as provided in Section 2(a) of these Registration Rights Provisions, at any time and from time to time commencing 180 days after the Closing Date, the Holders may request the registration under the Securities Act of all or part of the Registrable Shares then outstanding (a "Demand Registration"); provided, however, that the Holders may not exercise such right if the Registration Statement filed pursuant to said Section 2(a) is current and effective and the Holder had the opportunity to include his Registrable Shares in such Registration Statement. Subject to the conditions of Section 3 of these Registration Rights Provisions, the Company shall use its commercially reasonable efforts to file such registration statement under the Securities Act as promptly as possible practicable, but not later than sixty (60) days after the filing thereofdate any such request is received by the Company and to cause such registration statement to be declared effective; provided, but in however, that if the request is made during the period commencing with the fifteenth (15th) day of the next to the last month of a fiscal year and ending on the last day of the second month of the following fiscal year, the Company shall not be required to file the registration statement until ten Business Days after the date that the Company is required to file a Form 10-K or Form 10-KSB, without requesting any event on or prior the that date which is forty (40) days from the Filing Date (the "Effectiveness Date")extension. The number Company shall notify the Holders promptly when any such registration statement has been declared effective.
(c) Registration statements under Sections 2(a) and 2(b) of shares these Registration Rights Provisions shall be on the appropriate registration form of Common Stock included the Commission as shall permit the disposition of such Registrable Shares in accordance with the intended method or methods of disposition specified in the Registration Statement shall at Statement.
(d) The Company will pay all times be at least equal to 100% of the sum of the number of shares that are then issuable upon conversion of the Shares and exercise of the Warrants, and shall include any additional Registrable Securities issuable to Purchaser Expenses in connection with any registration required by under Sections 2(a) and 2(b) of these Registration Rights Provisions.
(e) A Registration Statement required to be filed pursuant to Sections 2(a) and 2(b) shall not be deemed to have been effected (i) unless a registration statement with respect thereto has become effective, provided that a registration which does not become effective after the First Closing which were not included on Company filed a registration statement with respect thereto solely by reason of the refusal to proceed of any Holder of Registrable Shares (other than a refusal to proceed based upon the advice of counsel in the form of a letter signed by such counsel and provided to the Company relating to a disclosure matter unrelated to such Holder) shall be deemed to have been effected by the Company, (ii) if, after it has become effective, such registration statements filed in connection with the First Closing, without regard becomes subject to any limitation on Purchaser's ability to convert the Shares stop order, injunction or exercise the Warrants. Notice of effectiveness other order or extraordinary requirement of the Registration Statement shall Commission or other governmental agency or court for any reason and such stop order or other action continues in effect for five trading days or (iii) if, after it has become effective, such registration ceases to be furnished promptly to Purchaser. Seller effective other than for an Excusable Reason.
(f) The Company shall use its commercially reasonable best efforts to maintain keep any Shelf Registration effective for twenty four (24) months, in the effectiveness case of a Registration Statement filed pursuant to Section 2(a) of this Agreement, and twelve (12) months, in the case of a Registration Statement filed pursuant to Section 2(b) of this Agreement, from the effective date of the Registration Statement and from time to time will amend or supplement until such Registration Statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act to permit the sale of the Registrable Securities by Purchaser. Seller shall use its commercially reasonable best efforts to maintain the effectiveness of the Registration Statement with respect to the Registrable Securities until all of the Registrable Shares have been sold by Purchaser pursuant thereto or such earlier date as all of the Registrable Securities may be sold Shares covered by Purchaser without registrationthe registration statement shall have been sold.
(bg) No registration effected under this Section 2 shall relieve the Company of its obligation to permit the registration of Registrable Shares pursuant to Section 3 of these Registration Rights Provisions.
(h) If the Company does not file the Registration Statement required by Section 2(a) of these Registration Rights Provisions by the Filing Date, the Company shall issue to the Holder, as liquidated damages and not as a penalty, three ten-thousandth (0.0003) of a share of Common Stock for each day between the Filing Date and the date the Registration Statement is filed with the Commission for each Conversion Share included in the Registration Statement. However, in no event shall the Company be required to pay any liquidated damages under this Section 2(h) in an amount exceeding twelve one-hundredth (0.12) of a share of Common Stock for each such Conversion Share. Such issuance shall be made within thirty (30) days after the later of (i) one year after the Filing Date or (ii) the date the Registration Statement is filed.
(i) As a condition to the inclusion of the a Holder's Registrable Securities Shares in the a registration statement pursuant to Sections 2(a), 2(b) and 3 of these Registration StatementRights Provisions, Purchaser will furnish to Seller such information with respect to Purchaser as is required to be disclosed in the Registration Statement (and the prospectus included therein) by the applicable rules, regulations and guidelines of the SEC.
(c) In connection with the registration of Registrable Securities under the Securities Act, Seller each Holder shall:
(i) prepare furnish the information and file with indemnification as set forth in these Registration Rights Provisions and update such information immediately upon the SEC a Registration Statement on occurrence of any events or condition which make the appropriate form with respect to such Registrable Securities and use its commercially reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after such filinginformation concerning the Holder inaccurate in any material respect;
(ii) prepare and file with the SEC such amendments and supplements (including post-effective amendments and supplements) not sell any Registrable Shares pursuant to the Registration Statement covering such Registrable Securities and registration statement except in the prospectus used manner set forth in connection therewith as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement until such time as all of the Registrable Securities registered thereunder have been disposed of in accordance with the intended method of disposition by Purchaserregistration statement;
(iii) furnish to Purchaser of such Registrable Securities registered under the Securities Act such number of copies of a prospectus and preliminary prospectus in conformity comply with the prospectus delivery requirements and the provisions of Regulation M of the Commission pursuant to the Securities Act, and such other documents as Purchaser may reasonably request, in order to facilitate the public sale or other disposition of such Registrable Securities;
(iv) notify Purchaser of such not sell or otherwise transfer or distribute any Registrable Securities if, at Shares shares if the Holder possesses any time when a prospectus relating to such Registrable Securities is required to be delivered under material nonpublic information concerning the Securities Act, any event shall have occurred as a result of which the prospectus then in use with respect to such Registrable Securities would include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made or for any other reason it shall be necessary to amend or supplement such prospectus in order to comply with the Securities Act, and prepare and furnish to Purchaser a reasonable number of copies of a supplement to or an amendment of such prospectus which will correct such statement or omission or effect such compliance;Company; and
(v) use its commercially reasonable best efforts not sell or otherwise transfer any Registrable Shares pursuant to register or qualify such a registration statement upon receipt of advice from the Company that the registration statement is no longer current until the Holder is advised that the Registrable Securities under such other securities or blue sky laws of such jurisdictions as Purchaser shall reasonably request, to keep such registrations and qualifications in effect for so long as the Registration Statement referred to in paragraph 6.1(c)(i) above remains in effect, and to do any and all other acts and things which Shares may be necessary or desirable sold pursuant to enable Purchaser to consummate the public sale or other disposition in each such jurisdiction of such Registrable Securities owned by Purchaserregistration statement; provided, however, that Seller will not be required to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 6.1(c)(v) or (B) consent to general service of process in any such jurisdiction;and
(vi) keep provide any other information requested by the Purchaser informed of Seller's best estimate of the earliest date on which such Registration Statement or any post-effective amendment or supplement thereto will become effective and promptly notify Purchaser of the following: (A) when such Registration Statement or any post-effective amendment or supplement thereto becomes effective or is approved, (B) of the issuance by any competent authority of any stop order suspending the effectiveness or qualification of such Registration Statement or the prospectus then in use or the initiation or threat of any proceeding for that purpose, and (C) of the suspension of the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction;
(vii) cooperate with Purchaser, give Purchaser and its counsel and accountants, such access to its books and records and such opportunities to discuss the business of Seller with its officers and independent public accountants as shall be necessary to enable them to conduct a reasonable investigation within the meaning of the Securities Act; and
(viii) pay all costs and expenses incident to the performance and compliance by Seller with the provisions of this Section 6.1, including without limitation, (A) all registration and filing fees, (B) all printing expenses, (C) all fees and disbursements of counsel and independent public accountants for Seller, including, without limitationCommission, the entire expense of NASD, any special audits required by the rules and regulations of the SEC, (D) all blue sky fees and expenses (including fees and expenses of counsel in connection with blue sky surveys) and (E) the cost of distributing prospectuses in preliminary and final form as well as any supplements thereto; expressly excluding, however, commissions relating to the Registrable Securities sold and the fees and expenses of counsel for Purchaser. Seller shall (i) not later that the third business day following the Closing prepare and file with Nasdaq an additional shares listing application covering the shares of Common Stock issuable upon conversion of the Shares and exercise of the Warrants, (ii) take all steps after the Closing necessary to cause such Securities to be approved for listing on Nasdaq (as well as on any other national securities stock exchange or market on which the Common Stock is then listed) as soon as possible thereafter, and (iii) provide to Purchaser evidence of such listing. Seller shall maintain the listing of its Common Stock on such exchange.
(d) If (i) the Registration Statement is not (A) filed with the SEC on or before the Filing Date or (B) declared effective by the SEC on or before the Effectiveness Date, (ii) on any day after the Registration Statement has been declared effective by the SEC (A) sales of the Registrable Securities required to be included on the Registration Statement cannot be made pursuant to the Registration Statement (including, without limitation, because of a failure to keep the Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to the Registration Statement, or to register sufficient shares of Common Stock) or (B) the Common Stock is not listed or included for quotation on the Nasdaq Stock Market (Nasdaq SmallCap or Nasdaq National Market), after being so listed or included for quotation, due to events or circumstances within the control of Seller and such condition continues unremedied for fifteen (15) days or (iii) Seller shall otherwise fail to file the Registration Statement (each such event specified in (i), (ii) and (iii) above, an "Event"), then, as partial relief for the damages to Purchaser by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity): (y) Seller shall pay to Purchaser an amount in cash (a "Registration Delay Payment") equal to two percent (2%) of the product of (I) the number of Shares held by Purchaser and (II) $100, multiplied by the sum of: (i) the number of months (prorated for partial months) after the end of the Effectiveness Date and prior to the date the Registration Statement is declared effective by the SEC; provided, however, that there shall be excluded from such period any delays which are solely attributable to changes required by Purchaser in the Registration Statement with respect to information relating to Purchaser, (ii) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq or that trading thereon is halted after the Registration Statement has been declared effective; and (z) the Conversion Price (as defined in the Certificate of Amendment) of the Shares and the Exercise Price (as defined in the Warrant Agreement) shall be decreased 2% on the date of such Event and shall be decreased an additional 2% as of each monthly anniversary of the date of such Event. Seller shall pay any required Registration Delay Payment to Purchaser in cash on the last business day of each month during which an Event has occurred and is continuing. In the event Seller fails to make a Registration Delay Payment in a timely manner, such Registration Delay Payment shall bear interest at the rate of 2.0% per month (prorated for partial months) until paid in full.
(i) Seller will indemnify and hold harmless Purchaser and each person, if any, who Controls (as defined below) Purchaser from and against any and all losses, claims, damages, liabilities and legal and other expenses (including costs of investigation) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Act, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made, except to the extent that such losses, claims, damages, liabilities or expenses are caused by any such untrue statement or omission or alleged untrue statement or omission included in reliance upon and in conformity with information furnished to Seller in writing by such seller expressly for use therein. As used in this paragraph 6.1(e)(i) and in paragraph 6.1(e)(ii) below, a person "Controls" another person if such first person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such second person, whether through the ownership of voting securities, by contract, or otherwise.
(ii) It shall be a condition to the obligation of Seller to effect a registration of Registrable Securities under the Securities Act pursuant hereto that Purchaser indemnify and hold harmless Seller and each person, if any, who Controls Seller to the same extent as the indemnity from Seller in the foregoing paragraph, but only with reference to information included in reliance upon and in conformity with information furnished to Seller in writing by Purchaser expressly for use in the Registration Statement, any prospectus or preliminary prospectus contained therein or any amendment or supplement thereto; provided, however, that in the absence of fraud the aggregate amount of claims for which Purchaser may be liable under this paragraph 6.1(e)(ii) shall not exceed the Purchase Price paid by Purchaser for the Securities.
(iii) In case any claim shall be made or any proceeding (including any governmental investigation) shall be instituted involving any indemnified party in respect of which indemnity may be sought pursuant to this paragraph (e), such indemnified party shall promptly notify the indemnifying party in writing of the same; provided that failure to notify the indemnifying party shall not relieve it from any liability it may have to an indemnified party otherwise than under this paragraph (e). The indemnifying party, upon request of the indemnified party or parties, shall retain one counsel reasonably satisfactory to the indemnified party or parties to represent the indemnified party or parties in such proceeding and shall pay the reasonable fees and disbursements of such counsel. In any such claim or proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and disbursements of such counsel shall be at the expense of such indemnified party unless (A) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaid, (B) the indemnifying party and such indemnified party shall have mutually agreed to the retention of such counsel or (C) representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate in the opinion of counsel to such indemnified party due to actual or potential conflicts of interest between such indemnified party traded and any other party represented by such counsel in such proceeding; provided that Seller shall not be liable for the fees and disbursements of more than one counsel for all indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgmentstate securities commission.
Appears in 1 contract
Samples: Registration Rights Provisions (Lawrence Consulting Group Inc)
