Transfer of Shares After Registration; Suspension; Damages. (a) Each Purchaser, severally and not jointly, agrees (i) that it will not sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to the Registrable Securities or otherwise take an action that would constitute a sale within the meaning of the Securities Act, other than transactions exempt from the registration requirements of the Securities Act, except as contemplated in a Registration Statement referred to in Section 9.1 or 9.13 and as described below, (ii) that it shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of a particular Purchaser that such Purchaser shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be required to effect the registration of such Registrable Securities and as reasonably requested by the Company in writing, (iii) that it shall execute such documents in connection with such registration, that are customary for resale registration statements, if any, as the Company may reasonably request, (iv) to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunder, unless such Purchaser has notified the Company in writing of such Purchaser’s election to exclude all of such Purchaser’s Registrable Securities from such Registration Statement and (v) that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Purchaser or its plan of distribution. (b) Subject to paragraph (c) below, in the event: (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose; or (iv) of any event or circumstance which necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; then the Company shall promptly deliver a certificate in writing to each Purchaser (a “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Purchaser will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Purchaser’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. (c) In the event of any Suspension, the Company shall cause the use of the Prospectus so suspended to be resumed as soon as practicable but in any event within thirty (30) days after delivery of the Suspension Notice to Purchasers; provided, however, that Purchasers shall not be prohibited from selling Registrable Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than thirty (30) days each and not more than ninety (90) days in the aggregate in any twelve month period. Notwithstanding the foregoing, if the Company ceases to be eligible to register the Registrable Securities or Included Registrable Securities, as applicable, on Form S-3 and resolution of any Suspension requires the Company to file a post-effective amendment on Form S-1, (i) the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable but in any event within ninety (90) days after delivery of a Suspension Notice to Purchasers, and (ii) the Purchasers shall not be prohibited from selling Registrable Securities under the amended Registration Statement on Form S-1 as a result of Suspensions on or after the date that the Company ceases to be eligible to register the Registrable Securities on Form S-3 on more than three occasions of not more than thirty (30) days each and not more than ninety (90) days in the aggregate in any twelve month period. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Purchaser, the Purchaser shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 9.2(c). (d) Provided that a Suspension in accordance with paragraphs (b) and (c) of this Section 9.2 is not then in effect, a Purchaser may sell Registrable Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus applicable to such registered Securities to the transferee of such Registrable Securities if required by applicable law. Upon receipt of a request therefor, the Company will provide an adequate number of current Prospectuses to the Purchaser and to any other parties requiring such Prospectuses. (e) If a Registration Statement ceases to be effective as to, or ceases to be available to the Purchasers with respect to, any Registrable Securities pursuant to subsections (b) or (c) of Section 9.2 for any reason prior to the expiration of the Effectiveness Period (any such event, a “Registration Default”), then the Company shall issue additional Warrants, with an exercise price of $0.01 per share, to each Purchaser to purchase shares of Common Stock representing two and one-half percent (2 1/2%) of the Purchaser’s pro rata portion of the number of Registrable Securities included in such Registration Statement pursuant to Section 9.1(a) for each aggregated thirty day period (or portion thereof) for which a Registration Default had continued; provided however, that the aggregate number of Warrant Shares issuable upon exercise of Warrants issued to a Purchaser under this subsection (e) shall not in the aggregate exceed ten percent (10%) of the Purchaser’s pro rata portion of the number of Registrable Securities included in such Registration Statement pursuant to Section 9.1(a). (f) In the event of any issuance of additional Warrants pursuant to Section 9.1(b) or Section 9.2(e), the Company shall use its reasonable best efforts to take such actions and obtain such approvals (including any shareholder, stock exchange or regulatory approvals) as may be necessary to permit the issuance of such Warrants to such Purchaser in compliance with applicable laws, rules and regulations. In the event that the Company is unable to issue any such Warrants within sixty (60) days following the date on which they would otherwise be issuable hereunder without violating applicable laws, rules or regulations, then the Company shall, in lieu of issuing such Warrants, pay by wire transfer to an account designated by such Purchaser or Purchasers an amount in cash equal to the aggregate Fair Market Value of the shares of Common Stock underlying such Warrant (determined as of the date on which such Warrants would have otherwise been issuable hereunder as if such shares were Warrant Shares subject to the form of Warrant attached hereto as Exhibit l-C), less the aggregate exercise price that would otherwise be applicable to such Warrant pursuant to the terms hereof.
Appears in 2 contracts
Samples: Note Purchase Agreement (TCV Vii Lp), Note Purchase Agreement (Xata Corp /Mn/)
Transfer of Shares After Registration; Suspension; Damages. (a) Each Purchaser, severally and not jointly, agrees (i) that it will not sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to the Registrable Securities or otherwise take an action that would constitute a sale within the meaning of the Securities Act, other than transactions exempt from the registration requirements of the Securities Act, except as contemplated in a the Registration Statement referred to in Section 9.1 or 9.13 1.1 and as described below, (ii) that it shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of a particular Purchaser that such Purchaser shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be required to effect the registration of such Registrable Securities and as reasonably requested by the Company in writingSecurities, (iii) that it shall execute such documents in connection with such registration, that are customary for resale registration statements, if any, as the Company may reasonably request, (iv) to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunder, unless such Purchaser has notified the Company in writing of such Purchaser’s 's election to exclude all of such Purchaser’s 's Registrable Securities from such Registration Statement and (v) that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Purchaser or its plan of distribution. Any delay of a Purchaser in taking the actions set forth in clauses (ii), (iii), (iv) and (v) of this Section 1.2(a) shall be deemed a "Purchaser Delay" for purposes of this Agreement.
(b) The Company shall: (i) prepare and file from time to time with the SEC a post-effective amendment to the Registration Statement or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will 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, and so that, as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, such Prospectus will 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, in light of the circumstances under which they were made, not misleading; (ii) provide the Purchaser copies of any documents filed pursuant to clause (i) of this Section 1.2(b); and (iii) upon request, inform each Purchaser who so requests that the Company has complied with its obligations in clause (i) of this Section 1.2(b) (or that, if the Company has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company will notify the Purchaser to that effect, will use its reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Purchaser pursuant to clause (i) of this Section 1.2(b) when the amendment has become effective).
(c) Subject to paragraph (cd) below, in the event: (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose; or (iv) of any event or circumstance which necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; then the Company shall promptly deliver a certificate in writing to each the Purchaser (a “the "Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Purchaser will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “"Suspension”") until the Purchaser’s 's receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus.
(c) . In the event of any Suspension, the Company shall cause the use of the Prospectus so suspended to be resumed as soon as practicable but in any event within thirty (30) days after delivery of the Suspension Notice to Purchasers; provided, however, that Purchasers shall not be prohibited from selling Registrable Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than thirty (30) days each and not more than ninety (90) days in the aggregate in any twelve month period. Notwithstanding the foregoing, if the Company ceases to be eligible to register the Registrable Securities or Included Registrable Securities, as applicable, on Form S-3 and resolution of any Suspension requires the Company to file a post-effective amendment on Form S-1, (i) the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable but in any event within ninety forty-five (9045) days after delivery of a Suspension Notice to Purchasers, and (ii) the Purchasers shall not be prohibited from selling Registrable Securities under the amended Registration Statement on Form S-1 as a result of Suspensions on or after the date that the Company ceases to be eligible to register the Registrable Securities on Form S-3 on more than three occasions of not more than thirty (30) days each and not more than ninety (90) days in the aggregate in any twelve month period. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Purchaser, the Purchaser shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 9.2(c1.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 1.2, the Purchasers shall not be prohibited from selling Registrable Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than forty-five (45) days each and not more than ninety (90) days in the aggregate in any twelve month period.
(e) Provided that a Suspension in accordance with paragraphs (bc) and (cd) of this Section 9.2 1.2 is not then in effect, effect a Purchaser may sell Registrable Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus applicable to such registered Securities to the transferee of such Registrable Securities if required by applicable lawSecurities. Upon receipt of a request therefor, the Company will provide an adequate number of current Prospectuses to the Purchaser and to any other parties requiring such Prospectuses.
(e) If a Registration Statement ceases to be effective as to, or ceases to be available to the Purchasers with respect to, any Registrable Securities pursuant to subsections (b) or (c) of Section 9.2 for any reason prior to the expiration of the Effectiveness Period (any such event, a “Registration Default”), then the Company shall issue additional Warrants, with an exercise price of $0.01 per share, to each Purchaser to purchase shares of Common Stock representing two and one-half percent (2 1/2%) of the Purchaser’s pro rata portion of the number of Registrable Securities included in such Registration Statement pursuant to Section 9.1(a) for each aggregated thirty day period (or portion thereof) for which a Registration Default had continued; provided however, that the aggregate number of Warrant Shares issuable upon exercise of Warrants issued to a Purchaser under this subsection (e) shall not in the aggregate exceed ten percent (10%) of the Purchaser’s pro rata portion of the number of Registrable Securities included in such Registration Statement pursuant to Section 9.1(a).
(f) In the event of any issuance a sale of additional Warrants pursuant to Section 9.1(b) or Section 9.2(e)Registrable Securities by a Purchaser, unless such requirement is waived by the Company in writing, such Purchaser shall use its reasonable best efforts deliver to take such actions and obtain such approvals (including any shareholderthe Company's transfer agent, stock exchange or regulatory approvals) as with a copy to the Company, a Certificate of Subsequent Sale in form reasonably acceptable to the Company, so that the shares may be necessary to permit the issuance of such Warrants to such Purchaser in compliance with applicable laws, rules and regulations. In the event that the Company is unable to issue any such Warrants within sixty (60) days following the date on which they would otherwise be issuable hereunder without violating applicable laws, rules or regulations, then the Company shall, in lieu of issuing such Warrants, pay by wire transfer to an account designated by such Purchaser or Purchasers an amount in cash equal to the aggregate Fair Market Value of the shares of Common Stock underlying such Warrant (determined as of the date on which such Warrants would have otherwise been issuable hereunder as if such shares were Warrant Shares subject to the form of Warrant attached hereto as Exhibit l-C), less the aggregate exercise price that would otherwise be applicable to such Warrant pursuant to the terms hereofproperly transferred.
Appears in 1 contract
Samples: Option Agreement (Deltagen Inc)
Transfer of Shares After Registration; Suspension; Damages. (a) Each Purchaser, severally and not jointly, agrees (i) that it will not sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to the Registrable Securities or otherwise take an action that would constitute a sale within the meaning of the Securities Act, other than transactions exempt from the registration requirements of the Securities Act, except as contemplated in a the Registration Statement referred to in Section 9.1 or 9.13 6.1 and as described below, (ii) that it shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of a particular Purchaser that such Purchaser shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be required to effect the registration of such Registrable Securities and as reasonably requested by the Company in writingSecurities, (iii) that it shall execute such documents in connection with such registration, that are customary for resale registration statements, if any, as the Company may reasonably request, (iv) to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunder, unless such Purchaser has notified the Company in writing of such Purchaser’s election to exclude all of such Purchaser’s Registrable Securities from such Registration Statement and (v) that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Purchaser or its plan of distribution. Any delay of a Purchaser in taking the actions set forth in clauses (ii), (iii), (iv) and (v) of this Section 6.2(a) shall be deemed a “Purchaser Delay” for purposes of this Agreement.
(b) The Company shall: (i) prepare and file from time to time with the SEC a post-effective amendment to the Registration Statement or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will 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, and so that, as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, such Prospectus will 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, in light of the circumstances under which they were made, not misleading; (ii) provide the Purchaser copies of any documents filed pursuant to Section 6.2(b)(i); and (iii) upon request, inform each Purchaser who so requests that the Company has complied with its obligations in Section 6.2(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company will notify the Purchaser to that effect, will use its reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Purchaser pursuant to Section 6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (cd) below, in the event: (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose; or (iv) of any event or circumstance which necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; then the Company shall promptly deliver a certificate in writing to each the Purchaser (a the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Purchaser will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Purchaser’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus.
(c) . In the event of any Suspension, the Company shall cause the use of the Prospectus so suspended to be resumed as soon as practicable but in any event within thirty (30) days after delivery of the Suspension Notice to Purchasers; provided, however, that Purchasers shall not be prohibited from selling Registrable Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than thirty (30) days each and not more than ninety (90) days in the aggregate in any twelve month period. Notwithstanding the foregoing, if the Company ceases to be eligible to register the Registrable Securities or Included Registrable Securities, as applicable, on Form S-3 and resolution of any Suspension requires the Company to file a post-effective amendment on Form S-1, (i) the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable but in any event within ninety forty-five (9045) days after delivery of a Suspension Notice to Purchasers, and (ii) the Purchasers shall not be prohibited from selling Registrable Securities under the amended Registration Statement on Form S-1 as a result of Suspensions on or after the date that the Company ceases to be eligible to register the Registrable Securities on Form S-3 on more than three occasions of not more than thirty (30) days each and not more than ninety (90) days in the aggregate in any twelve month period. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Purchaser, the Purchaser shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 9.2(c6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 6.2, the Purchasers shall not be prohibited from selling Registrable Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than forty-five (45) days each and not more than ninety (90) days in the aggregate in any twelve month period.
(e) Provided that a Suspension in accordance with paragraphs (bc) and (cd) of this Section 9.2 6.2 is not then in effect, effect a Purchaser may sell Registrable Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus applicable to such registered Securities to the transferee of such Registrable Securities if required by applicable lawSecurities. Upon receipt of a request therefor, the Company will provide an adequate number of current Prospectuses to the Purchaser and to any other parties requiring such Prospectuses.
(e) If a Registration Statement ceases to be effective as to, or ceases to be available to the Purchasers with respect to, any Registrable Securities pursuant to subsections (b) or (c) of Section 9.2 for any reason prior to the expiration of the Effectiveness Period (any such event, a “Registration Default”), then the Company shall issue additional Warrants, with an exercise price of $0.01 per share, to each Purchaser to purchase shares of Common Stock representing two and one-half percent (2 1/2%) of the Purchaser’s pro rata portion of the number of Registrable Securities included in such Registration Statement pursuant to Section 9.1(a) for each aggregated thirty day period (or portion thereof) for which a Registration Default had continued; provided however, that the aggregate number of Warrant Shares issuable upon exercise of Warrants issued to a Purchaser under this subsection (e) shall not in the aggregate exceed ten percent (10%) of the Purchaser’s pro rata portion of the number of Registrable Securities included in such Registration Statement pursuant to Section 9.1(a).
(f) In the event of any issuance a sale of additional Warrants pursuant to Section 9.1(b) or Section 9.2(e)Registrable Securities by a Purchaser, unless such requirement is waived by the Company shall use its reasonable best efforts to take such actions and obtain such approvals (including any shareholderin writing, stock exchange or regulatory approvals) as may be necessary to permit the issuance of such Warrants to such Purchaser in compliance with applicable laws, rules and regulations. In the event that the Company is unable to issue any such Warrants within sixty (60) days following the date on which they would otherwise be issuable hereunder without violating applicable laws, rules or regulations, then the Company shall, in lieu of issuing such Warrants, pay by wire transfer to an account designated by such Purchaser or Purchasers an amount in cash equal shall deliver to the aggregate Fair Market Value of the shares of Common Stock underlying such Warrant (determined as of the date on which such Warrants would have otherwise been issuable hereunder as if such shares were Warrant Shares subject Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form of Warrant attached hereto as Exhibit l-C), less so that the aggregate exercise price that would otherwise shares may be applicable to such Warrant pursuant to the terms hereofproperly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension; Damages. (a) Each Purchaser, severally and not jointly, agrees (i) that it will not sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to the Registrable Securities or otherwise take an action that would constitute a sale within the meaning of the Securities Act, other than transactions exempt from the registration requirements of the Securities Act, except as contemplated in a the Registration Statement referred to in Section 9.1 or 9.13 6.1 and as described below, (ii) that it shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of a particular Purchaser that such Purchaser shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be required to effect the registration of such Registrable Securities and as reasonably requested by the Company in writingSecurities, (iii) that it shall execute such documents in connection with such registration, that are customary for resale registration statements, if any, as the Company may reasonably request, (iv) to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunder, unless such Purchaser has notified the Company in writing of such Purchaser’s 's election to exclude all of such Purchaser’s 's Registrable Securities from such Registration Statement and (v) that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Purchaser or its plan of distribution. Any delay of a Purchaser in taking the actions set forth in clauses (ii), (iii), (iv) and (v) of this Section 6.2(a) shall be deemed a "Purchaser Delay" for purposes of this Agreement.
(b) The Company shall: (i) prepare and file from time to time with the SEC a post-effective amendment to the Registration Statement or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will 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, and so that, as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, such Prospectus will 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, in light of the circumstances under which they were made, not misleading; (ii) provide the Purchaser copies of any documents filed pursuant to Section 6.2(b)(i); and (iii) upon request, inform each Purchaser who so requests that the Company has complied with its obligations in Section 6.2(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company will notify the Purchaser to that effect, will use its reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Purchaser pursuant to Section 6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (cd) below, in the event: (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose; or (iv) of any event or circumstance which necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; then the Company shall promptly deliver a certificate in writing to each the Purchaser (a “the "Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Purchaser will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “"Suspension”") until the Purchaser’s 's receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus.
(c) . In the event of any Suspension, the Company shall cause the use of the Prospectus so suspended to be resumed as soon as practicable but in any event within thirty (30) days after delivery of the Suspension Notice to Purchasers; provided, however, that Purchasers shall not be prohibited from selling Registrable Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than thirty (30) days each and not more than ninety (90) days in the aggregate in any twelve month period. Notwithstanding the foregoing, if the Company ceases to be eligible to register the Registrable Securities or Included Registrable Securities, as applicable, on Form S-3 and resolution of any Suspension requires the Company to file a post-effective amendment on Form S-1, (i) the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable but in any event within ninety forty-five (9045) days after delivery of a Suspension Notice to Purchasers, and (ii) the Purchasers shall not be prohibited from selling Registrable Securities under the amended Registration Statement on Form S-1 as a result of Suspensions on or after the date that the Company ceases to be eligible to register the Registrable Securities on Form S-3 on more than three occasions of not more than thirty (30) days each and not more than ninety (90) days in the aggregate in any twelve month period. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Purchaser, the Purchaser shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 9.2(c6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 6.2, the Purchasers shall not be prohibited from selling Registrable Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than forty-five (45) days each and not more than ninety (90) days in the aggregate in any twelve month period.
(e) Provided that a Suspension in accordance with paragraphs (bc) and (cd) of this Section 9.2 6.2 is not then in effect, effect a Purchaser may sell Registrable Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus applicable to such registered Securities to the transferee of such Registrable Securities if required by applicable lawSecurities. Upon receipt of a request therefor, the Company will provide an adequate number of current Prospectuses to the Purchaser and to any other parties requiring such Prospectuses.
(e) If a Registration Statement ceases to be effective as to, or ceases to be available to the Purchasers with respect to, any Registrable Securities pursuant to subsections (b) or (c) of Section 9.2 for any reason prior to the expiration of the Effectiveness Period (any such event, a “Registration Default”), then the Company shall issue additional Warrants, with an exercise price of $0.01 per share, to each Purchaser to purchase shares of Common Stock representing two and one-half percent (2 1/2%) of the Purchaser’s pro rata portion of the number of Registrable Securities included in such Registration Statement pursuant to Section 9.1(a) for each aggregated thirty day period (or portion thereof) for which a Registration Default had continued; provided however, that the aggregate number of Warrant Shares issuable upon exercise of Warrants issued to a Purchaser under this subsection (e) shall not in the aggregate exceed ten percent (10%) of the Purchaser’s pro rata portion of the number of Registrable Securities included in such Registration Statement pursuant to Section 9.1(a).
(f) In the event of any issuance a sale of additional Warrants pursuant to Section 9.1(b) or Section 9.2(e)Registrable Securities by a Purchaser, unless such requirement is waived by the Company shall use its reasonable best efforts to take such actions and obtain such approvals (including any shareholderin writing, stock exchange or regulatory approvals) as may be necessary to permit the issuance of such Warrants to such Purchaser in compliance with applicable laws, rules and regulations. In the event that the Company is unable to issue any such Warrants within sixty (60) days following the date on which they would otherwise be issuable hereunder without violating applicable laws, rules or regulations, then the Company shall, in lieu of issuing such Warrants, pay by wire transfer to an account designated by such Purchaser or Purchasers an amount in cash equal shall deliver to the aggregate Fair Market Value of the shares of Common Stock underlying such Warrant (determined as of the date on which such Warrants would have otherwise been issuable hereunder as if such shares were Warrant Shares subject Company's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form of Warrant attached hereto as Exhibit l-C), less so that the aggregate exercise price that would otherwise shares may be applicable to such Warrant pursuant to the terms hereofproperly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension; Damages. (a) Each Purchaser, severally and not jointly, The Purchaser agrees (i) that it will not sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to the Registrable Securities or otherwise take an action that would constitute a sale within the meaning of the Securities Act, other than transactions exempt from the registration requirements of the Securities Act, except as contemplated in a the Registration Statement referred to in Section 9.1 or 9.13 5.1 and as described below, (ii) that it shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of a particular Purchaser the Purchaser, that such the Purchaser shall furnish to the Company such information regarding itself, the Registrable Securities and any other shares of Common Stock held by it and the intended method of disposition of the Registrable Securities held by it as shall be required to effect the registration of such Registrable Securities and as reasonably requested by the Company in writingSecurities, (iii) that it shall execute such documents in connection with such registration, that are customary for resale registration statements, if any, as the Company may reasonably request, (iv) to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunderhereunder (or amendment or supplement thereto), unless such the Purchaser has notified the Company in writing of such Purchaser’s its election to exclude all of such Purchaser’s its Registrable Securities from such Registration Statement and (v) that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Purchaser or its plan of distribution. Any delay of a Purchaser in taking the actions set forth in clauses (ii), (iii), (iv) and (v) of this Section 5.2(a) shall be deemed a "PURCHASER DELAY" for purposes of this Agreement.
(b) Subject to paragraph (c) below, in the event: (i) of any request by the SEC Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose; or (iv) of any event or circumstance which necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; then the Company shall promptly deliver a certificate in writing to each the Purchaser (a “Suspension Notice”the "SUSPENSION NOTICE") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Purchaser will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “Suspension”"SUSPENSION") until the Purchaser’s 's receipt of copies of a supplemented or amended Prospectus prepared and filed by the CompanyCompany and, if applicable, declared effective by the Commission, or until it is advised in writing by the Company that the current Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus.
(c) . In the event of any Suspension, the Company shall cause the use of the Prospectus so suspended to be resumed as soon as practicable but in any event within thirty (30) days after delivery of the Suspension Notice to Purchasers; provided, however, that Purchasers shall not be prohibited from selling Registrable Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than thirty (30) days each and not more than ninety (90) days in the aggregate in any twelve month period. Notwithstanding the foregoing, if the Company ceases to be eligible to register the Registrable Securities or Included Registrable Securities, as applicable, on Form S-3 and resolution of any Suspension requires the Company to file a post-effective amendment on Form S-1, (i) the Company will use its reasonable best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable but in any event within ninety forty-five (9045) days after delivery of a Suspension Notice to Purchasers, and (ii) the Purchasers shall not be prohibited from selling Registrable Securities under the amended Registration Statement on Form S-1 as a result of Suspensions on or after the date that the Company ceases to be eligible to register the Registrable Securities on Form S-3 on more than three occasions of not more than thirty (30) days each and not more than ninety (90) days in the aggregate in any twelve month periodPurchaser. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Purchaser, the Purchaser shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 9.2(c5.2(b).
(c) Notwithstanding the foregoing paragraphs of this Section 5.2, the Purchaser shall not be prohibited from selling Registrable Securities under the Registration Statement as a result of Suspensions on more than two occasions of not more than forty-five (45) days each and not more than ninety (90) days in the aggregate, in any twelve month period.
(d) Provided that a Suspension in accordance with paragraphs (b) and (c) of this Section 9.2 5.2 is not then in effect, a the Purchaser may sell Registrable Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus applicable to such registered Securities to the transferee of such Registrable Securities if required by applicable lawSecurities. Upon receipt of a request therefor, the Company will provide an adequate number of current Prospectuses to the Purchaser and to any other parties requiring such Prospectuses.
(e) If a Registration Statement ceases to be effective as to, or ceases to be available to covering all of the Purchasers with respect to, any Registrable Securities pursuant to subsections (b) has not been declared effective by the Commission on or (c) of Section 9.2 for any reason prior to the expiration first anniversary of the Effectiveness Period Closing Date (any such event, a “Registration Default”the "EFFECTIVENESS DEADLINE"), then the Company dividend rate applicable to the Preferred Stock shall issue additional Warrants, with an exercise price of $0.01 per share, be increased pursuant to each Purchaser to purchase shares of Common Stock representing two and one-half percent (2 1/2%) the terms of the Purchaser’s pro rata portion Certificate of the number of Registrable Securities included in such Registration Statement pursuant to Section 9.1(a) for each aggregated thirty day period (or portion thereof) for which a Registration Default had continuedDesignation; provided provided, however, that the aggregate number of Warrant Shares issuable upon exercise of Warrants issued to a Purchaser under this subsection (e) shall not be entitled to an increase in the aggregate exceed ten percent dividend rate with respect to any Registrable Securities previously sold or then eligible to be sold within a three (10%3) month period without compliance with the registration requirements of the Purchaser’s pro rata portion Securities Act under Rule 144 of the number of Registrable Securities included Act. Notwithstanding anything in such Registration Statement pursuant this Agreement to Section 9.1(a).
(f) In the event contrary, the Filing Deadline and the Effectiveness Deadline shall be tolled to the extent of any issuance of additional Warrants pursuant to Section 9.1(b) or Section 9.2(e), the Company shall use its reasonable best efforts to take such actions and obtain such approvals (including delays caused solely by any shareholder, stock exchange or regulatory approvals) as may be necessary to permit the issuance of such Warrants to such Purchaser in compliance with applicable laws, rules and regulations. In the event that the Company is unable to issue any such Warrants within sixty (60) days following the date on which they would otherwise be issuable hereunder without violating applicable laws, rules or regulations, then the Company shall, in lieu of issuing such Warrants, pay by wire transfer to an account designated by such Purchaser or Purchasers an amount in cash equal to the aggregate Fair Market Value of the shares of Common Stock underlying such Warrant (determined as of the date on which such Warrants would have otherwise been issuable hereunder as if such shares were Warrant Shares subject to the form of Warrant attached hereto as Exhibit l-C), less the aggregate exercise price that would otherwise be applicable to such Warrant pursuant to the terms hereofDelay.
Appears in 1 contract
Transfer of Shares After Registration; Suspension; Damages. (a) Each Purchaser, severally and not jointly, agrees (i) that it will not sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to the Registrable Securities or otherwise take an action that would constitute a sale within the meaning of the Securities Act, other than transactions exempt from the registration requirements of the Securities Act, except as contemplated in a the Registration Statement referred to in Section 9.1 or 9.13 and as described below, (ii) that it shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of a particular Purchaser that such Purchaser shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be required to effect the registration of such Registrable Securities and as reasonably requested by the Company in writingSecurities, (iii) that it shall execute such documents in connection with such registration, that are customary for resale registration statements, if any, as the Company may reasonably request, (iv) to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunder, unless such Purchaser has notified the Company in writing of such Purchaser’s Purchasers election to exclude all of such Purchaser’s Purchasers Registrable Securities from such Registration Statement and (v) that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Purchaser or its plan of distribution. Any delay of a Purchaser in taking the actions set forth in clauses (ii), (iii), (iv) and (v) of this Section 9.2(a), or caused solely as a result of the use of the Plan of Distribution filed as Exhibit E hereto, shall be deemed a “Purchaser Delay” for purposes of this Agreement.
(b) Subject to paragraph (c) below, in the event: (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Initial Registration Statement or any Dividend Registration Statement for amendments or supplements to a such Registration Statement Statements or related Prospectus Prospectuses or for additional information; (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a the Initial Registration Statement or any Dividend Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose; or (iv) of any event or circumstance which necessitates the making of any changes in the Initial Registration Statement or Prospectusany Dividend Registration Statement or related Prospectuses, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the such Registration StatementStatements, it they will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the ProspectusProspectuses, it they will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; then the Company shall promptly deliver a certificate in writing to each Purchaser (a “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Purchaser will refrain from selling any Registrable Securities pursuant to the such Registration Statement Statements (a “Suspension”) until the Purchaser’s Purchasers’ receipt of copies of a supplemented or amended Prospectus Prospectuses prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus Prospectuses may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus.
(c) In the event of any Suspension, the Company shall will use its commercially reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable but in any event within thirty forty-five (3045) days after delivery of the a Suspension Notice to Purchasers; provided, however, that Purchasers shall not be prohibited from selling Registrable Securities under the Initial Registration Statement or any Dividend Registration Statement as a result of Suspensions on more than three occasions of not more than thirty forty-five (3045) days each and not more than ninety (90) days in the aggregate in any twelve month period. Notwithstanding the foregoing, if the Company ceases to be eligible to register the Registrable Securities or Included Registrable Securities, as applicable, on Form S-3 and resolution of any Suspension requires the Company to file a post-effective amendment on Form S-1, (i) the Company will use its best commercially reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable but in any event within ninety (90) days after delivery of a Suspension Notice to Purchasers, and (ii) the Purchasers shall not be prohibited from selling Registrable Securities under the amended Initial Registration Statement on Form S-1 or any Dividend Registration Statement as a result of Suspensions on or after the date that the Company ceases to be eligible to register the Registrable Securities on Form S-3 on more than three occasions of not more than thirty sixty (3060) days each and not more than ninety (90) days in the aggregate in any twelve month period. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Purchaser, the Purchaser shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 9.2(c).
(d) Provided that a Suspension in accordance with paragraphs (b) and (c) of this Section 9.2 is not then in effect, effect a Purchaser may sell Registrable Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus applicable to such registered Securities to the transferee of such Registrable Securities if required by applicable lawSecurities. Upon receipt of a request therefor, the Company will provide an adequate number of current Prospectuses to the Purchaser and to any other parties requiring such Prospectuses.
(e) In the event of a sale of Registrable Securities by a Purchaser, unless such requirement is waived by the Company in writing, such Purchaser shall deliver to the Company’s transfer agent, with a copy to the Company, of a Seller’s Certificate of Sale substantially in the form attached hereto as Appendix III.
(f) If a (i) the Initial Registration Statement or a Dividend Registration Statement covering all of the Registrable Securities to which it is required to cover (a) is not filed with the SEC on or prior to the Filing Deadline or the Dividend Filing Deadline, as the case may be, or (b) has not been declared effective by the SEC on or prior to the Effectiveness Deadline or the Dividend Effectiveness Deadline, as the case may be, or (ii) the Initial Registration Statement or the Dividend Registration Statement, as the case may be, ceases to be effective as to, or ceases to be available to the Purchasers with respect to, any all Registrable Securities pursuant to subsections (b) or (c) of Section 9.2 for which it is required to relate at any reason time prior to the expiration of the Effectiveness Period other than during the continuance and for the enumerated time periods of any Suspension in accordance with paragraphs (c) and (d) of this Section 9.2 (any such event, a “Registration Default”), then the Company shall issue additional Warrants, with an exercise price of $0.01 per share, to pay each Purchaser liquidated damages in an amount equal to purchase shares of Common Stock representing two and one-half (i) with respect to the Initial Securities under the Initial Registration Statement, one percent (2 1/21.0%) of the Purchaser’s aggregate purchase price paid by such Purchaser for the Initial Securities available for sale under the Initial Registration Statement at the time of the Registration Default per calendar month, including a pro rata portion thereof for any partial calendar month, that such Registration Default continues, and (ii) with respect to the Dividend Shares under any Dividend Registration Statement, one percent (1.0%) of the Original Issue Price (as defined in the Certificate of Designations of Series A and Series B Convertible Preferred Stock of Pharsight Corporation) for each Dividend Share available for sale under such Dividend Registration Statement at the time of the Registration Default per calendar month, including a pro rata protion thereof for any partial calendar month, that such Registration Default continues (collectively, “Liquidated Damages”); provided, however, that no Purchaser shall be entitled to Liquidated Damages with respect to any Registrable Securities previously sold or then eligible to be sold within a three (3) month period without compliance with the registration requirements of the Securities Act under Rule 144 of the Securities Act. The Company shall not in any event be required to pay Liquidated Damages for more than one Registration Default at any given time, and upon cure of a Registration Default (by the filing or the declaration of effectiveness of the Registration Statement, as applicable) such Liquidated Damages shall cease to accrue. All accrued Liquidated Damages shall be paid in cash to the Purchasers entitled thereto, in proportion to the aggregate number of Registrable Securities included in beneficially owned by each such Purchaser to which the Initial Registration Statement pursuant or the Dividend Registration Statement relates. Notwithstanding anything in the foregoing to Section 9.1(athe contrary, all periods in clauses (i) for each aggregated thirty day period and (or portion thereof) for which a Registration Default had continued; provided however, that the aggregate number of Warrant Shares issuable upon exercise of Warrants issued to a Purchaser under this subsection (eii) shall not in be tolled to the aggregate exceed ten percent (10%) of the Purchaser’s pro rata portion of the number of Registrable Securities included in such Registration Statement pursuant to Section 9.1(a).
(f) In the event extent of any issuance of additional Warrants pursuant to Section 9.1(b) or Section 9.2(e), the Company shall use its reasonable best efforts to take such actions and obtain such approvals (including delays caused solely by any shareholder, stock exchange or regulatory approvals) as may be necessary to permit the issuance of such Warrants to such Purchaser in compliance with applicable laws, rules and regulations. In the event that the Company is unable to issue any such Warrants within sixty (60) days following the date on which they would otherwise be issuable hereunder without violating applicable laws, rules or regulations, then the Company shall, in lieu of issuing such Warrants, pay by wire transfer to an account designated by such Purchaser or Purchasers an amount in cash equal to the aggregate Fair Market Value of the shares of Common Stock underlying such Warrant (determined as of the date on which such Warrants would have otherwise been issuable hereunder as if such shares were Warrant Shares subject to the form of Warrant attached hereto as Exhibit l-C), less the aggregate exercise price that would otherwise be applicable to such Warrant pursuant to the terms hereofDelay.
Appears in 1 contract
Samples: Preferred Stock and Warrant Purchase Agreement (Pharsight Corp)
Transfer of Shares After Registration; Suspension; Damages. (a) Each PurchaserInvestor, severally and not jointly, agrees (i) that it will not sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to the Registrable Securities or otherwise take an action that would constitute a sale within the meaning of the Securities Act, other than transactions exempt from the registration requirements of the Securities Act, except as contemplated in a the Registration Statement referred to in Section 9.1 or 9.13 7.1 and as described below, (ii) that it shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of a particular Purchaser Investor that such Purchaser Investor shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be required to effect the registration of such Registrable Securities and as reasonably requested by the Company in writingCompany, (iii) that it shall execute such documents in connection with such registration, that are customary for resale registration statements, if any, as the Company may reasonably request, (iv) to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunder, unless such Purchaser Investor has notified the Company in writing of such PurchaserInvestor’s election to exclude all of such PurchaserInvestor’s Registrable Securities from such Registration Statement and (v) that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Purchaser Investor or its plan of distribution.
(b) Subject to paragraph (c) below, in the event: (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose; or (iv) of any event or circumstance which necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; then the Company shall promptly deliver a certificate in writing to each Purchaser Investor (a “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Purchaser Investor will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the PurchaserInvestor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus.
(c) In the event of any Suspension, the Company shall cause the use of the Prospectus so suspended to be resumed as soon as practicable but in any event within thirty sixty (3060) days after delivery of the Suspension Notice to Purchasers; provided, however, that Purchasers shall not be prohibited from selling Registrable Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than thirty (30) days each and not more than ninety (90) days in the aggregate in any twelve month period. Notwithstanding the foregoing, if the Company ceases to be eligible to register the Registrable Securities or Included Registrable Securities, as applicable, on Form S-3 and resolution of any Suspension requires the Company to file a post-effective amendment on Form S-1, (i) the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable but in any event within ninety (90) days after delivery of a Suspension Notice to Purchasers, and (ii) the Purchasers shall not be prohibited from selling Registrable Securities under the amended Registration Statement on Form S-1 as a result of Suspensions on or after the date that the Company ceases to be eligible to register the Registrable Securities on Form S-3 on more than three occasions of not more than thirty (30) days each and not more than ninety (90) days in the aggregate in any twelve month period. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Purchaser, the Purchaser shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 9.2(c)Investors.
(d) Provided that a Suspension in accordance with paragraphs (b) and (c) of this Section 9.2 7.2 is not then in effect, a Purchaser an Investor may sell Registrable Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus applicable to such registered Securities to the transferee of such Registrable Securities if required by applicable law. Upon receipt of a request therefor, the Company will provide an adequate number of current Prospectuses to the Purchaser and to any other parties requiring such ProspectusesSecurities.
(e) If a Registration Statement ceases to be effective as to, or ceases to be available to the Purchasers with respect to, any Registrable Securities pursuant to subsections (b) or (c) of Section 9.2 for any reason prior to the expiration of the Effectiveness Period (any such event, a “Registration Default”), then the Company shall issue additional Warrants, with an exercise price of $0.01 per share, to each Purchaser to purchase shares of Common Stock representing two and one-half percent (2 1/2%) of the Purchaser’s pro rata portion of the number of Registrable Securities included in such Registration Statement pursuant to Section 9.1(a) for each aggregated thirty day period (or portion thereof) for which a Registration Default had continued; provided however, that the aggregate number of Warrant Shares issuable upon exercise of Warrants issued to a Purchaser under this subsection (e) shall not in the aggregate exceed ten percent (10%) of the Purchaser’s pro rata portion of the number of Registrable Securities included in such Registration Statement pursuant to Section 9.1(a).
(f) In the event of any issuance of additional Warrants pursuant to Section 9.1(b) or Section 9.2(e), the Company shall use its reasonable best efforts to take such actions and obtain such approvals (including any shareholder, stock exchange or regulatory approvals) as may be necessary to permit the issuance of such Warrants to such Purchaser in compliance with applicable laws, rules and regulations. In the event that the Company is unable to issue any such Warrants within sixty (60) days following the date on which they would otherwise be issuable hereunder without violating applicable laws, rules or regulations, then the Company shall, in lieu of issuing such Warrants, pay by wire transfer to an account designated by such Purchaser or Purchasers an amount in cash equal to the aggregate Fair Market Value of the shares of Common Stock underlying such Warrant (determined as of the date on which such Warrants would have otherwise been issuable hereunder as if such shares were Warrant Shares subject to the form of Warrant attached hereto as Exhibit l-C), less the aggregate exercise price that would otherwise be applicable to such Warrant pursuant to the terms hereof.
Appears in 1 contract
Samples: Securities Purchase Agreement (Sun BioPharma, Inc.)
Transfer of Shares After Registration; Suspension; Damages. (a) Each Purchaser, severally and not jointly, agrees (i) that it will not sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to the Registrable Securities or otherwise take an action that would constitute a sale within the meaning of the Securities Act, other than transactions exempt from the registration requirements of the Securities Act, except as contemplated in a the Registration Statement referred to in Section 9.1 or 9.13 6.1 and as described below, (ii) that it shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of a particular Purchaser that such Purchaser shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be required to effect the registration of such Registrable Securities and as reasonably requested by the Company in writingSecurities, (iii) that it shall execute such documents in connection with such registration, that are customary for resale registration statements, if any, as the Company may reasonably request, (iv) to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunder, unless such Purchaser has notified the Company in writing of such Purchaser’s election to exclude all of such Purchaser’s Registrable Securities from such Registration Statement and (v) that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Purchaser or its plan of distribution. Any delay of a Purchaser in taking the actions set forth in clauses (ii), (iii), (iv) and (v) of this Section 6.2(a) shall be deemed a “Purchaser Delay” for purposes of this Agreement.
(b) The Company shall: (i) prepare and file from time to time with the SEC a post-effective amendment to the Registration Statement or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will 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, and so that, as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, such Prospectus will 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, in light of the circumstances under which they were made, not misleading; (ii) provide the Purchaser copies of any documents filed pursuant to Section 6.2(b)(i); and (iii) upon request, inform each Purchaser who so requests that the Company has complied with its obligations in Section 6.2(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company will notify the Purchaser to that effect, will use its reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Purchaser pursuant to Section 6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (cd) below, in the event: (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose; or (iv) of any event or circumstance which necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; then the Company shall promptly deliver a certificate in writing to each the Purchaser (a the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Purchaser will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Purchaser’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus.
(c) . In the event of any Suspension, the Company shall cause the use of the Prospectus so suspended to be resumed as soon as practicable but in any event within thirty (30) days after delivery of the Suspension Notice to Purchasers; provided, however, that Purchasers shall not be prohibited from selling Registrable Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than thirty (30) days each and not more than ninety (90) days in the aggregate in any twelve month period. Notwithstanding the foregoing, if the Company ceases to be eligible to register the Registrable Securities or Included Registrable Securities, as applicable, on Form S-3 and resolution of any Suspension requires the Company to file a post-effective amendment on Form S-1, (i) the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable but in any event within ninety forty-five (9045) days after delivery of a Suspension Notice to Purchasers, and (ii) the Purchasers shall not be prohibited from selling Registrable Securities under the amended Registration Statement on Form S-1 as a result of Suspensions on or after the date that the Company ceases to be eligible to register the Registrable Securities on Form S-3 on more than three occasions of not more than thirty (30) days each and not more than ninety (90) days in the aggregate in any twelve month period. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Purchaser, the Purchaser shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 9.2(c6.2(c).
(d) otwithstanding the foregoing paragraphs of this Section 6.2, the Purchasers shall not be prohibited from selling Registrable Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than forty-five (45) days each and not more than ninety (90) days in the aggregate in any twelve month period.
(e) Provided that a Suspension in accordance with paragraphs (bc) and (cd) of this Section 9.2 6.2 is not then in effect, effect a Purchaser may sell Registrable Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus applicable to such registered Securities to the transferee of such Registrable Securities if required by applicable lawSecurities. Upon receipt of a request therefor, the Company will provide an adequate number of current Prospectuses to the Purchaser and to any other parties requiring such Prospectuses.
(e) If a Registration Statement ceases to be effective as to, or ceases to be available to the Purchasers with respect to, any Registrable Securities pursuant to subsections (b) or (c) of Section 9.2 for any reason prior to the expiration of the Effectiveness Period (any such event, a “Registration Default”), then the Company shall issue additional Warrants, with an exercise price of $0.01 per share, to each Purchaser to purchase shares of Common Stock representing two and one-half percent (2 1/2%) of the Purchaser’s pro rata portion of the number of Registrable Securities included in such Registration Statement pursuant to Section 9.1(a) for each aggregated thirty day period (or portion thereof) for which a Registration Default had continued; provided however, that the aggregate number of Warrant Shares issuable upon exercise of Warrants issued to a Purchaser under this subsection (e) shall not in the aggregate exceed ten percent (10%) of the Purchaser’s pro rata portion of the number of Registrable Securities included in such Registration Statement pursuant to Section 9.1(a).
(f) In the event of any issuance a sale of additional Warrants pursuant to Section 9.1(b) or Section 9.2(e)Registrable Securities by a Purchaser, unless such requirement is waived by the Company shall use its reasonable best efforts to take such actions and obtain such approvals (including any shareholderin writing, stock exchange or regulatory approvals) as may be necessary to permit the issuance of such Warrants to such Purchaser in compliance with applicable laws, rules and regulations. In the event that the Company is unable to issue any such Warrants within sixty (60) days following the date on which they would otherwise be issuable hereunder without violating applicable laws, rules or regulations, then the Company shall, in lieu of issuing such Warrants, pay by wire transfer to an account designated by such Purchaser or Purchasers an amount in cash equal shall deliver to the aggregate Fair Market Value of the shares of Common Stock underlying such Warrant (determined as of the date on which such Warrants would have otherwise been issuable hereunder as if such shares were Warrant Shares subject Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form of Warrant attached hereto as Exhibit l-C)D, less so that the aggregate exercise price that would otherwise shares may be applicable to such Warrant pursuant to the terms hereofproperly transferred.
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