Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution. (b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request; and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective). (c) Subject to paragraph (d) 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor. (d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company. (e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Company shall provide such number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses. (f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Rita Medical Systems Inc), Stock Purchase Agreement (Rita Medical Systems Inc), Stock Purchase Agreement (Rita Medical Systems Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor Subscriber agrees that it will not effect any disposition of the Shares Securities or its right to purchase the Shares Securities that would constitute a sale "sale" within the meaning of the Securities Act 1933 Act, except as contemplated in the Registration Statement referred to in Section 7.1 9.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor Subscriber or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares and Warrant Shares 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 Investor Subscriber copies of any documents filed pursuant to Section 7.2(b)(i9.2(b)(i) as the Investor Subscriber may reasonably request; and (iii) inform each Investor Subscriber that the Company has complied with its obligations in Section 7.2(b)(i9.2(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 Investor Subscriber to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Subscriber pursuant to Section 7.2(b)(i9.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event of: (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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor Subscriber (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Subscriber will refrain from selling any Shares and Warrant Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’s Subscriber'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. In the event of any Suspension, 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 within 20 business trading days after the delivery of a Suspension Notice to the InvestorSubscriber.
(d) Notwithstanding the foregoing paragraphs of this Section 7.29.2, the Investor Subscriber shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 20 trading days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor Subscriber may sell the Shares and the Warrant Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares or Warrant Shares, as applicable. The Company shall provide such number of current Prospectuses to the Investor Subscriber as the Investor Subscriber may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 4 contracts
Samples: Private Placement Subscription Agreement (Eden Energy Corp), Private Placement Subscription Agreement (Eden Energy Corp), Private Placement Subscription Agreement (Heartland Oil & Gas Corp)
Transfer of Shares After Registration; Suspension. (a) The Each Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 4.1 and as described below or as otherwise permitted by lawunder Rule 144 of the Securities Act, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distributiondistribution of the Shares.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, promptly 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 Shares 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 each Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request4.2(b)(i); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(b)(i4.2(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 each Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i4.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the each Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the such Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 ten (10) business days after the delivery of a Suspension Notice to each Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity), available to each Investor, such Investor shall be entitled to specific performance in the Investorevent that the Company fails to comply with the provisions of this Section 4.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.24.2, the each Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two (2) occasions of not more than 30 fifteen (15) days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the each Investor may sell Shares under the Registration Statement, provided that it such Investor arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed promptly to provide such an adequate number of current Prospectuses to the each Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Repligen Corp), Stock Purchase Agreement (Repligen Corp), Stock Purchase Agreement (Repligen Corp)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition or other transfer of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except other than transactions exempt from the registration requirements of the Securities Act, as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor (other than the number of Securities beneficially owned by it) or its plan of distributiondistribution attached as Exhibit “B” hereto.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor with either copies of any documents filed pursuant to Section 7.2(b)(i3(b)(i) as the Investor may reasonably requestor access to such documents electronically; and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i3(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i3(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) following the 60th Business Day of any the Effective Date, if the Board of Directors determines in good faith, by appropriate resolutions, that, as a result of an event or circumstance which, upon the advice of its counsel, which necessitates the making of any material 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 omit 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 omit 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 or electronically to the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Investors are 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. Notwithstanding the foregoing, the right of the Company to implement a Suspension shall be limited to two such Suspensions and an aggregate of 45 days in any twelve-month period. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorInvestors. In the event, within any twelve month period, of (i) three or more such Suspensions or (ii) one or two Suspensions exceeding an aggregate of 45 days, (an “Excess Suspension”) the Company shall make payment to the Investor as liquidated damages therefore an amount equal to one percent (1%) of the Purchase Price paid for the Shares then held by the Investor per each 30 day period of the Excess Suspension, provided that in no event shall the total of all such amounts plus any Late Registration Payments under Section 1(b) exceed in the aggregate twelve percent (12%) of the Purchase Price. Any liquidated damages payable as the result of an Excess Suspension shall be paid on each 30th anniversary date of each Excess Suspension, and liquidated damages payable on account of Excess Suspension periods of less than 30 days shall be pro rated on a daily basis. In addition, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 3(c). The Investor covenants that from the date hereof it will maintain in confidence the receipt and content of any Suspension Notice provided in accordance with this paragraph (c) in accordance with and subject to Section 4.6 of Annex I to the Securities Purchase Agreement.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that If a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for complies with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In the event of a sale of Shares by the Investor pursuant to Investor, unless such requirement is waived by the Registration StatementCompany in writing, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, such documentation reasonably requested by the transfer agent including, without limitation, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
(f) Following the Effective Date or at such earlier time as a legend is no longer required for certain Shares, the Company will no later than three (3) Business Days following the delivery by an Investor to the Company or the Transfer Agent (with notice to the Company) of (i) a legended certificate representing such Shares (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to effect the reissuance and/or transfer and an opinion of Investor’s counsel reasonably acceptable to the Company), and (ii) if applicable, the Certificate of Subsequent Sale in the form attached hereto as Exhibit “A”, issue irrevocable transfer agent instructions and to deliver or cause to be delivered to such Investor a certificate representing such Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section.
Appears in 3 contracts
Samples: Registration Rights Agreement (Quantum Fuel Systems Technologies Worldwide Inc), Registration Rights Agreement (Quantum Fuel Systems Technologies Worldwide Inc), Registration Rights Agreement (Quantum Fuel Systems Technologies Worldwide Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor Each Limited Partner agrees that it will not effect any disposition of the Shares or its right to purchase the Merger Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawthis Agreement, and that it will promptly notify the Company Abraxas in writing of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distributionLimited Partner.
(b) Except in the event that paragraph (c) below applies, the Company Abraxas shall (i) if deemed necessary by the Company, Abraxas: (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 therein, in light of the circumstances under which they were made, not misleading, and so that, as thereafter delivered to purchasers of the Merger Shares 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 Investor Limited Partners copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request; 5.5(b), and (iii) inform each Investor Limited Partner that the Company Abraxas has complied with its obligations in Section 7.2(b)(i5.5(b) (or that, if the Company Abraxas has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company Abraxas will notify the Investor Limited Partners to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Limited Partner pursuant to Section 7.2(b)(i5.5(c) and Section 5.5(b) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in In the event of (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 Abraxas of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Merger Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 Abraxas shall promptly deliver a certificate notice in writing to the Investor Limited Partners (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Limited Partners will refrain from selling any Merger Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s Limited Partners’ receipt of copies of a supplemented or amended Prospectus prepared and filed by the CompanyAbraxas, or until it is the Limited Partners are advised in writing by the Company Abraxas that the current Prospectus may be used, and has have received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, the Company Abraxas will use its best commercially reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon promptly as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor.
(d) Limited Partners. Notwithstanding the foregoing paragraphs of this Section 7.2foregoing, the Investor Abraxas shall not be prohibited from selling Shares under required to amend or supplement the Registration Statement Statement, any related Prospectus or any document incorporated therein by reference in the event that, and for a period (a “Black Out Period”) not to exceed, for so long as this Agreement is in effect, thirty (30) days consecutively in any ninety (90) day period or ninety (90) days in any twelve (12) month period if either (A) any action by Abraxas pursuant to this Section 5.5(c) would violate applicable law or (B) (x) an event occurs and is continuing as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under which the Registration Statement, provided that it arranges for delivery any related Prospectus or any document incorporated therein by reference as then amended or supplemented would, in Abraxas’ good faith judgment, contain an untrue statement of a current Prospectus material fact or omit to state a material fact necessary in order to make the transferee statements therein, in the light of the circumstances under which they were made, not misleading, and (y)
(1) Abraxas determines in good faith that the disclosure of such Shares. The Company shall provide event at such number time would have a material adverse effect on the business, operations or prospects of current Prospectuses Abraxas or (2) the disclosure otherwise relates to the Investor as the Investor may reasonably request, and shall supply copies to a material business transaction which has not yet been publicly disclosed in any other parties reasonably requiring such Prospectusesrelevant jurisdiction.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 3 contracts
Samples: Voting, Registration Rights & Lock Up Agreement (Abraxas Petroleum Corp), Voting, Registration Rights & Lock Up Agreement (Abraxas Petroleum Corp), Voting, Registration Rights & Lock Up Agreement (Abraxas Petroleum Corp)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares 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 the Registration Statement referred to in Section 7.1 6.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(b)(i); and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor (the “Suspension Notice”) to the effect of the foregoing (but not including any information which constitutes material non-public information other than notice that one of the foregoing events has occurred) and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’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. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Company shall use its best efforts to ensure that the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period. If a Suspension is in effect for more than 60 days (consecutive or non-consecutive) in any twelve-month period, unlessthe Company shall, on the 61st day of the Suspension and each 30th day thereafter, make payments to the Investor as partial compensation for such delay until the Suspension is lifted. The amount of the payments made to the Investor will be equal to 1% of the purchase price paid for the Shares purchased by the Investor and not previously sold by the Investor for each 30 days that sales cannot be made under the effective Registration Statement (but in no event to exceed 8% in the good faith judgment aggregate) beyond the period allowed by the previous sentence. The number of Shares not previously sold as specified in the previous sentence shall be determined as of the Company’s Board end of Directors, upon the written opinion respective 30 day period. These payments will be prorated on a daily basis during the 30 day period and will be paid to the Investor by check within five business days following the later of counsel the end of counsel, each month as to which payment is due hereunder or two business days after the sale Investor has delivered to the Company such information with respect to the number of Shares under not previously sold by the Registration Statement in reliance on this paragraph 7.2(dInvestor (together with reasonable supporting documentation) would be as reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to requested by the Company.
(e) Provided that If a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, unless such requirement is waived by the Company in writing, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AC, so that the Shares shares may be properly transferred.
(g) The Company agrees that it shall, immediately prior to the Registration Statement being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that at any time the Registration Statement is effective, the transfer agent shall issue, in connection with the sale of the Shares, certificates representing such Shares without restrictive legend, provided the Shares are to be sold pursuant to the prospectus contained in the Registration Statement and the transfer agent receives a Certificate of Subsequent Sale in the form attached hereto as Exhibit C. Upon receipt of such opinion, the Company shall cause the transfer agent to confirm, for the benefit of the Investor, that no further opinion of counsel is required at the time of transfer in order to issue such Shares without restrictive legend. In the event of any sale of the Shares in accordance with this Agreement, the restrictive legend shall be removed and the Company shall issue a certificate without such legend to the purchaser of any such Shares, if (a) the sale of such Shares is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act); (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Shares may be made without registration under the Securities Act; or (c) such Shares are sold in compliance with Rule 144 under the Securities Act.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Endocardial Solutions Inc), Stock Purchase Agreement (Endocardial Solutions Inc), Stock Purchase Agreement (Endocardial Solutions Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor hereby agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 2.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 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 Shares being sold thereunder, such Prospectus 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 Investor copies of any documents filed pursuant to this Section 7.2(b)(i) as the Investor may reasonably request2.2(b)(i); and (iii) inform each the Investor that the Company has complied with its obligations in this Section 7.2(b)(i2.2(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 Investor to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to this Section 7.2(b)(i2.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectusprospectus, 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 Prospectusprospectus, 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 the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’s receipt of it receives copies of a supplemented or amended Prospectus prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus 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 Prospectusprospectus. In the event of any Suspension, the Company will use its best commercially reasonable efforts to cause the use of the Prospectus prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investorpracticable.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell the Shares under the Registration Statement; provided, provided however, that it arranges for delivery of a current Prospectus prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectusesprospectuses.
(fe) In the event of a sale of the Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, A so that the Shares may be properly transferred. Assuming timely delivery to the Company's transfer agent of one or more stock certificates representing the Shares in proper form for transfer and assuming compliance by the Investor with the terms of this Deed, the Company's transfer agent will issue and make appropriate delivery of one or more stock certificates in the name of the buyer so as to permit timely compliance by the Investor with applicable settlement requirements.
Appears in 2 contracts
Samples: Deed of Share Exchange (Osi Pharmaceuticals Inc), Deed of Share Exchange (Osi Pharmaceuticals Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor Firm agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company Registrant of any changes in the information set forth in the Registration Statement regarding the Investor Firm or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall Registrant shall: (i) if deemed necessary by the CompanyRegistrant, 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 Shares 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 Investor Firm copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(b)(i); and (iii) upon request, inform each Investor the Firm upon its request that the Company Registrant has complied with its obligations in Section 7.2(b)(i6.2(b)(i) (or that, if the Company Registrant has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company Registrant will notify the Investor Firm to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Firm pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Registrant of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon which the advice of its counsel, Registrant believes 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 Registrant shall promptly deliver a certificate in writing to the Investor Firm (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Firm will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’s Firm's receipt of copies of a supplemented or amended Prospectus prepared and filed by the CompanyRegistrant, or until it is advised in writing by the Company Registrant 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. In the event of any Suspension, the Company Registrant will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business 60 days after the delivery of a Suspension Notice to the InvestorFirm. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Firm, the Firm shall be entitled to specific performance in the event that the Registrant fails to comply with the provisions of this Section 6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Firm shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 90 days each in any twelve month period, unless, in the good faith judgment and any such Suspension must be separated by a period of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(dat least thirty (30) would be reasonably likely to cause days from a violation of the Securities Act or the Exchange Act and result in liability to the Companyprior Suspension.
(e) Provided that a Suspension is not then in effect, effect the Investor Firm may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Company shall Upon receipt of a request therefor, the Registrant will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, Firm and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 2 contracts
Samples: Settlement Agreement (Ramp Corp), Settlement Agreement (Ramp Corp)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 3(b) below applies, the Company shall NFC shall: (i) if deemed necessary by the Company, 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 Shares being sold thereundereach Holder, 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 Investor Holders copies of any documents filed pursuant to Section 7.2(b)(iclause (i) as the Investor may reasonably requestabove; and (iii) upon request, inform each Investor Holder in writing that the Company NFC has complied with its obligations in Section 7.2(b)(i2(b)(i) (or that, if the Company NFC has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company NFC will notify the Investor Holder in writing to that effect, will use its commercially reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Holder pursuant to Section 7.2(b)(i2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) below, in In the event 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 the 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 the Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company NFC of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 NFC shall promptly deliver a certificate in writing to the Investor Holders (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Holders will refrain from selling any Shares Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Holders are advised in writing by the Company NFC that the current Prospectus may be used, and has have received copies from NFC of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, the Company NFC will use its commercially reasonable best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the InvestorHolders. In addition to and without limiting any other remedies (including, without limitation, at law or at equity, or pursuant to Section 2(d)) available to NFC and the Holders, NFC and the Holders shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 3(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that If a Suspension is not then in effect, the Investor each Holder may sell Shares Registrable Securities under the Registration Statement, provided that it arranges complies with any applicable prospectus delivery requirements. The Holders may use the last form of the Prospectus publicly available on NFC’s database at xxx.xxx as authorized for such delivery requirement unless they have been notified in writing otherwise, and the reason therefore, by NFC. Upon receipt of a current Prospectus to the transferee of such Shares. The Company shall request therefor, NFC will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, each Holder and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 2 contracts
Samples: Registration Rights Agreement (New Frontier Health Corp), Registration Rights Agreement (New Frontier Health Corp)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 6.2(b) below applies, the Company shall shall: (i) if deemed necessary or advisable by the Company, prepare and file from time to time with the SEC applicable governmental authority a post-effective amendment to any Blue Sky Registration, 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 Blue Sky Registration or 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 Shares 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 Investor Purchasers copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(a)(i); and (iii) upon request, inform each Investor Purchaser who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement or any Blue Sky Registration which has not yet been declared effective, the Company will notify the Investor Purchaser to that effect, will use its commercially reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) belowSection 6.2(c), in the event event: (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of any Blue Sky Registration or the Registration Statement or for amendments or supplements to a such Blue Sky Registration, the 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 such Blue Sky Registration or of the 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 Shares Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, which necessitates the making of any changes in any Blue Sky Registration, the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of any Blue Sky Registration or the Registration Statement, it will not contain any untrue statement of a material fact or any omission omit 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 omit 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 the Investor Purchasers (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchasers will refrain from selling any Shares Securities pursuant to such Blue Sky Registration or the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Purchasers are advised in writing by the Company that the current Blue Sky Registration or the Prospectus may be used, and has have received copies from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Blue Sky Registration or Prospectus. In the event of any Suspension, the Company will use its commercially reasonable best efforts to cause the use of the Blue Sky Registration or Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the InvestorPurchasers. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Purchaser, the Company and the Purchasers shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 6.2(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its commercially reasonable best efforts to ensure that (i) a Suspension shall not exceed 30 days individually, (ii) Suspensions covering no more than 45 days, in the aggregate, shall occur during any twelve month period and (iii) each Suspension shall be prohibited separated by a period of at least 30 days from selling Shares under a prior Suspension (each Suspension that satisfies the Registration Statement foregoing criteria being referred to herein as a “Qualifying Suspension”). In the event that there occurs a Suspension (or part thereof) that does not constitute a Qualifying Suspension, the Company shall pay to the Purchaser, on the 30th day following the first day of such Suspension (or the first day of such part), and on each 30th day thereafter, an amount equal to 1% of the Purchase Price paid for the Securities purchased by the Purchaser and not previously sold by the Purchaser with such payments to be prorated on a daily basis during each 30 day period and will be paid to the Purchaser by wire transfer or check within five business days after the end of each 30 day period following. The Company and the Purchaser each acknowledge that the payments provided for in this Section 6.2(c) bear a reasonable relationship to the anticipated loss that would be suffered by the Purchaser as a result of Suspensions on more than two occasions a Suspension and the actual loss the Purchaser would suffer as a result of not more than 30 days each in any twelve month period, unless, in the good faith judgment a Suspension is difficult to ascertain or incapable of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Companyestimation.
(ed) Provided that If a Suspension is not then in effect, the Investor Purchasers may sell Shares Securities under the Registration StatementStatement and each Blue Sky Registration, provided that it arranges for they comply with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses or Blue Sky Registrations to the Investor as the Investor may reasonably request, a Purchaser and shall supply copies to any other parties reasonably requiring such Prospectusesdocuments.
(fe) In The Company agrees that it shall, immediately prior to the event Registration Statement and all Blue Sky Registrations being declared effective, deliver to its transfer agent an opinion letter of a counsel, opining that at any time the Registration Statement and the Blue Sky Registrations are effective, the transfer agent may issue, in connection with the sale of Shares by the Investor Securities, certificates representing such Securities without restrictive legend, provided the Securities are to be sold pursuant to the prospectus contained in the Registration StatementStatement and any applicable Blue Sky Registration. Upon receipt of such opinion, the Investor must also deliver Company shall cause the transfer agent to confirm promptly, for the benefit of the Purchasers, that no further opinion of counsel is required at the time of transfer in order to issue such Securities without restrictive legend. The Company shall cause its transfer agent to issue promptly a certificate without any restrictive legend to a purchaser of any Securities from the Purchasers, if no Suspension is in effect at the time of sale, and (a) the sale of such Securities is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act) and all applicable blue sky laws; (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the Company’s effect that a public sale or transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares such Securities may be properly transferredmade without registration under the Securities Act or any blue sky law; or (c) such Securities are sold in compliance with Rule 144 under the Securities Act and all applicable blue sky laws. In addition, the Company shall remove the restrictive legend from any Securities held by the Purchasers following the expiration of the holding period required by Rule 144 under the Securities Act (or any successor rule) and all blue sky laws.
Appears in 2 contracts
Samples: Common Stock and Warrant Purchase Agreement (Magnegas Corp), Common Stock and Warrant Purchase Agreement (Magnegas Corp)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall will (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request; and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; purpose or (iv) of any event or circumstance which, upon the advice of its counsel, 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 will deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor will be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall will not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two three occasions of not more than 30 60 days each in during any twelve 12-month period; provided, unlesshowever, in that once the good faith judgment of Company becomes eligible to use Form S-3 promulgated under the Company’s Board of Directors, upon the written opinion of counsel of counselSecurities Act, the sale maximum number of days an Investor may be prohibited from selling Shares under during any 12-month period pursuant to this subsection (d) shall be reduced to 45 days. Any Suspension that does not exceed the Registration Statement limitations set forth in reliance on this paragraph section 7.2(d) would be reasonably likely is referred to cause herein as a violation of the Securities Act or the Exchange Act and result in liability to the Company"Suspension Period."
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration StatementInvestor, the Investor must also will deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AD, so that the Shares shares may be properly transferred.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Energy Conversion Devices Inc), Stock Purchase Agreement (Energy Conversion Devices Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 6.2(b) below applies, the Company shall shall: (i) if deemed necessary or advisable by the Company, 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 Common Shares 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 Investor copies Purchasers copies, or access to copies, of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(a)(i); and (iii) upon request, inform each Investor Purchaser who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor Purchaser to that effect, will use its commercially reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) belowSection 6.2(c), in the event 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 the 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 the 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 Common Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor Purchasers (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchasers will refrain from selling any Common Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Purchasers are advised in writing by the Company that the current Prospectus may be used, and has have received copies from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorPurchasers. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Purchaser, the Company and the Purchasers shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 6.2(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its commercially reasonable best efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of exceed 30 days individually, (ii) Suspensions on covering no more than two occasions of not more than 30 days each 45 days, in the aggregate, shall occur during any twelve month periodperiod and (iii) each Suspension shall be separated by a period of at least 30 days from a prior Suspension (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”). In the event that there occurs a Suspension (or part thereof) that does not constitute a Qualifying Suspension, unlessthe Company shall pay to the Purchaser, on the 30th day following the first day of such Suspension (or the first day of such part), and on each 30th day thereafter, an amount equal to 1% of the Purchase Price paid for the Securities purchased by the Purchaser and not previously sold by the Purchaser with such payments to be prorated on a daily basis during each 30 day period (in the good faith judgment event of any sales of the CompanyPurchaser’s Board securities during such period) and will be paid to the Purchaser by wire transfer or check within five business days after the end of Directors, upon the written opinion of counsel of counsel, the sale of Shares each 30 day period following. The maximum amounts due under the Registration Statement in reliance on this paragraph 7.2(dSection 6.2(c) would shall be reasonably likely to cause a violation 6% of the Purchase Price paid for the Securities Act or purchased by the Exchange Act Purchaser and result in liability to not previously sold by the CompanyPurchaser.
(ed) Provided that If a Suspension is not then in effect, the Investor Purchasers may sell Common Shares under the Registration Statement, provided that it arranges for they comply with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, a Purchaser and shall supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In The Company agrees that it shall, immediately subsequent to the event Registration Statement being declared effective, deliver to its transfer agent an opinion letter of a counsel, opining that at any time the Registration Statement is effective, the transfer agent may issue, in connection with the sale of the Common Shares, certificates representing such Common Shares by without restrictive legend, provided the Investor Common Shares are to be sold pursuant to the prospectus contained in the Registration Statement. Upon receipt of such opinion, the Investor must also deliver Company shall cause the transfer agent to confirm, for the benefit of the Purchasers, that no further opinion of counsel is required at the time of transfer in order to issue such Common Shares without restrictive legend. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Common Shares from the Purchasers, if no Suspension is in effect at the time of sale, and (a) the sale of such Common Shares is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act); (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the Company’s effect that a public sale or transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the such Common Shares may be properly transferredmade without registration under the Securities Act; or (c) such Common Shares are sold in compliance with Rule 144 under the Securities Act. In addition, the Company shall remove the restrictive legend from any Common Shares held by the Purchasers following the expiration of the holding period required by Rule 144 under the Securities Act (or any successor rule).
Appears in 2 contracts
Samples: Common Stock and Warrant Purchase Agreement (Pacific Grove Capital LP), Common Stock and Warrant Purchase Agreement (Monaker Group, Inc.)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two three occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in potential liability to the Company.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration StatementInvestor, the Investor must also shall deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AC, so that the Shares shares may be properly transferred.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Pharmacopeia Inc), Stock Purchase Agreement (Pharmacopeia Inc)
Transfer of Shares After Registration; Suspension. (ai) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Purchased Shares that would constitute a sale within the meaning of the Securities Act except (A) as contemplated in the Registration Statement referred to in Section 7.1 Sections 3.2(a) and as described below (b) or (B) as otherwise permitted by law, including pursuant to the safe harbor provided by Rule 144 under the Securities Act, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(bii) Except in the event that Section 3.2(b) or paragraph (ciii) below applies, the Company shall (ix) if deemed necessary by the Company, 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 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 any 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 Purchased Shares being sold thereunder, such Prospectus prospectus will not contain an any 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; (iiy) provide the Investor copies of any documents filed pursuant to Section 7.2(b)(iclause (x) as the Investor may reasonably requestabove; and (iiiz) inform each the Investor that the Company has complied with its obligations in Section 7.2(b)(iclause (x) above (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 Investor to that effect, will use its reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(iclause (x) hereof above when the amendment has become effective).
(ciii) Subject Except to the extent that Section 3.2(b) applies, and subject to paragraph (div) below, in the event (iw) 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 prospectus or for additional information; (iix) 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; (iiiy) 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 Purchased Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (ivz) of any event or circumstance which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectusprospectus, 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 Prospectusprospectus, 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 deliver a certificate notice in writing to the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Purchased Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prospectus prepared and filed by the Company, or until it the Investor is advised in writing by the Company that the current Prospectus prospectus may be used, and the Investor has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectusprospectus. In the event of any Suspension, the Company will use its reasonable best efforts to cause the use of the Prospectus prospectus so suspended to be resumed as soon as reasonably practicable within 20 business thirty (30) days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, remedies available under applicable law or in equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 3.2(f)(iii).
(div) The Company may require the Investor participating in any registration to furnish to the Company such information regarding the Investor as required under applicable law and the Investor’s intended method of distribution of such Purchased Shares as the Company may from time to time reasonably request in writing. The Investor agrees to promptly notify the Company of any inaccuracy or change in information previously furnished by the Investor to the Company or of the occurrence of any event in either case as a result of which any prospectus relating to such registration contains or would contain an untrue statement of a material fact regarding the Investor or its intended method of distribution of such Purchased Shares or omits to state any material fact regarding the Investor or its intended method of distribution of such Purchased 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 information so required so that such prospectus shall not contain, with respect to the Investor or the distribution of such Purchased Shares, 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 then existing.
(v) Notwithstanding the foregoing paragraphs of this Section 7.23.2(f), the Investor shall not be prohibited from selling Purchased Shares under the covered by a Registration Statement initiated pursuant to Section 3.2(a) as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve (12) month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Purchased Shares under the Registration Statement in reliance on this paragraph 7.2(dSection 3.2(f)(v) would be reasonably likely to cause a violation of the Securities Act or Act, the Exchange Act and result in liability to the Companyor other applicable law.
(evi) Provided that a Suspension is not then in effect, the Investor may sell Purchased Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus prospectus to the transferee of such SharesPurchased Shares in compliance with applicable law. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectusesprospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 2 contracts
Samples: Common Stock Subscription Agreement (Genzyme Corp), Common Stock Subscription Agreement (Exact Sciences Corp)
Transfer of Shares After Registration; Suspension. (ai) The Investor Each Investor, severally and not jointly, agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 3.10(a) and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(bii) Except in the event that paragraph (ciii) below applies, the Company shall (ix) if deemed necessary by the Company, 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 Shares 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; (iiy) provide the Investor Investors copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request3.10(b)(ii)(x); and (iiiz) inform each Investor that the Company has complied with its obligations in Section 7.2(b)(i3.10(b)(ii)(x) (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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i3.10(b)(ii)(x) hereof when the amendment has become effective).
(ciii) Subject to paragraph (div) below, in the event (iw) 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; (iix) 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; (iiiy) 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (ivz) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate notice in writing to the each Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the InvestorInvestors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investors, each Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 3.10(b)(iii).
(div) Notwithstanding the foregoing paragraphs of this Section 7.23.10(b), the Investor Investors shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(dSection 3.10(b)(iv) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(ev) Provided that a Suspension is not then in effect, the any Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such SharesShares in compliance with applicable law. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, Investors and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(fvi) In the event of a sale of Shares by the an Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AD, so that the Shares may be properly transferred.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Artisoft Inc), Stock Purchase Agreement (Artisoft Inc)
Transfer of Shares After Registration; Suspension. (ai) The Investor Each Investor, severally and not jointly, agrees that it will not effect any disposition of the Shares Registrable Securities or its right to purchase the Shares Registrable Securities that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 2(a) and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(bii) Except in the event that paragraph (ciii) below applies, the Company shall (ix) if deemed necessary by the Company, 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 Shares 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; (iiy) provide the Investor Investors copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request2(b)(ii)(x); and (iiiz) inform each Investor that the Company has complied with its obligations in Section 7.2(b)(i2(b)(ii)(x) (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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i2(b)(ii)(x) hereof when the amendment has become effective).
(ciii) Subject to paragraph (div) below, in the event (iw) 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; (iix) 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; (iiiy) 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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (ivz) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate notice in writing to the each Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Investor’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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the InvestorInvestors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investors, each Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 2(b)(iii).
(div) Notwithstanding the foregoing paragraphs of this Section 7.22(b), the Investor Investors shall not be prohibited from selling Shares Registrable Securities under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares Registrable Securities under the Registration Statement in reliance on this paragraph 7.2(dSection 2(b)(iv) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(ev) Provided that a Suspension is not then in effect, the any Investor may sell Shares Registrable Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such SharesRegistrable Securities in compliance with applicable law. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, Investors and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(fvi) In the event of a sale of Shares Registrable Securities by the an Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AD, so that the Shares Registrable Securities may be properly transferred.
Appears in 2 contracts
Samples: Registration Rights Agreement (Artisoft Inc), Registration Rights Agreement (Artisoft Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except (i) as contemplated in the Registration Statement referred to in Section 7.1 and as described below below, or as otherwise permitted by law(ii) in a transaction exempt from registration under the Securities Act, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that Subject to paragraph (c) below applies(if applicable), the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in potential liability to the Company.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration StatementInvestor, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.of
Appears in 2 contracts
Samples: Stock Purchase Agreement (Amylin Pharmaceuticals Inc), Stock Purchase Agreement (Amylin Pharmaceuticals Inc)
Transfer of Shares After Registration; Suspension. (a) The Each Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares 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 the Registration Statement referred to in Section 7.1 1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor itself or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor Investors copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request2(b)(i); and (iii) upon request, inform each any Investor that the Company has complied with its obligations in Section 7.2(b)(i2(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 such Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the such Investor pursuant to Section 7.2(b)(i2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 the each Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the each Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business 30 days after the delivery of a Suspension Notice to the InvestorInvestors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investors, the Investors shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.22, the Investor Company shall not suspend the Registration Statement which causes any Investor to be prohibited from selling Shares under the Registration Statement as a result of Suspensions such Suspension on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment and any such Suspension must be separated by a period of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(dat least thirty (30) would be reasonably likely to cause days from a violation of the Securities Act or the Exchange Act and result in liability to the Companyprior Suspension.
(e) Provided that a Suspension is not then in effect, the effect each Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall will provide such the requested number of current Prospectuses to the each Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Micro Investment LLC), Securities Purchase Agreement (Micro Therapeutics Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 6.2(b) below applies, the Company shall during the Effectiveness Period: (i) if deemed necessary or advisable by the Company, 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 Shares 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 Investor copies Purchasers copies, or access to copies, of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(a)(i); and (iii) upon request, inform each Investor Purchaser who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor Purchaser to that effect, will use its reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) belowSection 6.1(c), in the event 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 the 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 the 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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor Purchasers (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchasers will refrain from selling any Shares Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Purchasers are advised in writing by the Company that the current Prospectus may be used, and has have received copies copies, or access to copies, from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorPurchasers. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Purchaser, the Company and the Purchasers shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 6.2(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its reasonable best efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of exceed 30 days individually, (ii) Suspensions on covering no more than two occasions of not more than 30 days each 45 days, in the aggregate, shall occur during any twelve month periodperiod and (iii) each Suspension shall be separated by a period of at least 30 days from a prior Suspension (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”).
(d) During the Effectiveness Period, unless, the Company shall cause Certificates evidencing the Registrable Securities not to contain any restrictive legend (including the legend set forth in the good faith judgment Section 3.3(b)): (i) following a resale of the Company’s Board of DirectorsShares under an effective registration statement (including the Registration Statement) covering such Registrable Securities, upon the written opinion of counsel of counsel, the or (ii) following a sale of such Registrable Securities pursuant to Rule 144, or (iii) while such Registrable Securities are eligible for sale under Rule 144 and, with respect to any Purchaser’s Shares, such Purchaser is not and has not been for three months an affiliate of the Company (as such term is defined in Rule 144(a)(1)) and such Shares have been held for one year or more pursuant to the requirements of Rule 144 and any other requirements under the Registration Statement in reliance on this paragraph 7.2(dRule 144 have been satisfied at such time, or (iv) would be reasonably likely to cause a violation if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the Staff of the SEC). Following such time as restrictive legends are not required to be placed on Certificates representing Shares, the Company will, no later than three Trading Days following the delivery by a Purchaser to the Company or the Exchange Act and result in liability Company’s transfer agent of a Certificate representing Registrable Securities containing a restrictive legend, deliver or cause to be delivered to such Purchaser a Certificate representing such Registrable Securities that is free from all restrictive legends. Promptly after the Registration Statement is declared effective by the SEC, the Company will cause its counsel to issue a legal opinion to the Company.
(e) Provided that ’s transfer agent to effect the removal of the restrictive legend contemplated by this Agreement upon request by a Suspension is not then Purchaser in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Company shall provide such number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of connection with a sale of Shares such Purchaser’s Registrable Securities by the Investor such Purchaser pursuant to the Registration Statement, which opinion will not include the Investor must also deliver resale of shares issued as part of the purchase price for the acquisition of Target pursuant to the Company’s SPA. The Company may not make any notation on its records or give instructions to any transfer agent, with a copy agent of the Company that enlarge the restrictions on transfer set forth in this Agreement. Certificates for Registrable Securities subject to legend removal hereunder shall be transmitted by the transfer agent of the Company to the Company, Purchasers by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system unless a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferredPurchaser provides alternate written instructions.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (Fusion Telecommunications International Inc), Common Stock Purchase Agreement (Fusion Telecommunications International Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 6.2(b) below applies, the Company shall shall: (i) if deemed necessary or advisable by the Company, 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 Shares 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 Investor Purchasers copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(a)(i); and (iii) upon request, inform each Investor Purchaser who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor Purchaser to that effect, will use its commercially reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) belowSection 6.2(c), in the event 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 the 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 the 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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor Purchasers (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchasers will refrain from selling any Shares Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Purchasers are advised in writing by the Company that the current Prospectus may be used, and has have received copies from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. Such Suspension Notice shall not contain any material non-public information. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the InvestorPurchasers. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Purchaser, the Company and the Purchasers shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 6.2(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its commercially reasonable best efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of exceed 10 days individually, (ii) Suspensions on covering no more than two occasions of not more than 30 days each in any twelve month period, unless45 days, in the good faith judgment aggregate, shall occur during any twelve-month period and (iii) each Suspension shall be separated by a period of at least 30 days from a prior Suspension (each Suspension that satisfies the Company’s Board of Directors, upon foregoing criteria being referred to herein as a “Qualifying Suspension”). In the written opinion of counsel of counselevent that there occurs a Suspension (or part thereof) that does not constitute a Qualifying Suspension, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability Company shall pay to the CompanyPurchaser the amounts set forth in Section 6.1(a).
(ed) Provided that If a Suspension is not then in effect, the Investor Purchasers may sell Shares Registrable Securities under the Registration Statement, provided that it arranges for they sell such Registrable Securities during such time that the registration statement is effective and not withdrawn or suspended and only as permitted by such registration statement, and provided that they comply with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, a Purchaser and shall supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In The Company agrees that it shall, immediately prior to the event Registration Statement being declared effective, deliver to its transfer agent an opinion letter of a counsel, opining that at any time the Registration Statement is effective, the transfer agent may issue, in connection with the sale of Shares by the Investor Registrable Securities, certificates representing such Registrable Securities without restrictive legend, provided the Registrable Securities are to be sold pursuant to the prospectus contained in the Registration StatementStatement and applicable prospectus delivery requirements. Upon receipt of such opinion, the Investor must also deliver Company shall cause the transfer agent to confirm that no further opinion of counsel is required at the time of transfer in order to issue such Registrable Securities without restrictive legend. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Registrable Securities from the Purchasers, if no Suspension is in effect at the time of sale, and (a) the sale of such Registrable Securities is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act); (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the Company’s effect that a public sale or transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares such Registrable Securities may be properly transferredmade without registration under the Securities Act; or (c) such Registrable Securities are or may be sold in compliance with Rule 144 under the Securities Act.
Appears in 2 contracts
Samples: Unit Purchase Agreement (Vertex Energy Inc.), Unit Purchase Agreement (Vertex Energy Inc.)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares or the Warrant Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and in all cases in accordance with the procedures reasonably requested by the Company to ensure compliance with the securities laws, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distributionInvestor.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares and Warrant Shares 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 Investor copies (which may be provided electronically) of any documents filed pursuant to Section 7.2(b)(i6(b)(i) as the Investor may reasonably request; , and (iii) inform each the Investor that the Company has complied with its obligations in Section 7.2(b)(i6(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement which that has not yet been declared effective, the Company will notify the Investor to that effect, will use its best reasonable commercial efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 Shares or the Warrant Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; , or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver (which delivery may occur electronically) a certificate in writing to the Investor (the “Suspension Notice”"SUSPENSION NOTICE") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares and Warrant Shares pursuant to the Registration Statement (a “Suspension”"SUSPENSION") until the Investor’s 's receipt of copies (which may be provided electronically) 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. In the event of any Suspension, the Company will use its best reasonable commercial efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 twenty (20) business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 6(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Company shall provide Shares and otherwise complies with applicable federal and state securities laws in connection with such number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectusessale.
(fe) In the event of a sale of Shares or Warrant Shares by the Investor pursuant to the Registration Statement, the Investor must also shall deliver to the Company’s 's transfer agent, with a copy agent such documentation as reasonably required to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferredeffect such transfer.
Appears in 2 contracts
Samples: Subscription Agreement (Beijing Med Pharm Corp), Subscription Agreement (Beijing Med Pharm Corp)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 6.2(b) below applies, the Company shall shall: (i) if deemed necessary or advisable by the Company, 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 Shares 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 Investor Purchasers copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(a)(i); and (iii) upon request, inform each Investor Purchaser who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor Purchaser to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) belowSection 6.2(c), in the event 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 the 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 the 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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor Purchasers (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchasers will refrain from selling any Shares Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Purchasers are advised in writing by the Company that the current Prospectus may be used, and has have received copies from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorPurchasers. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Purchaser, the Company and the Purchasers shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 6.2(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its commercially reasonable efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of exceed 30 days individually, (ii) Suspensions on covering no more than two occasions of not more than 30 days each 45 days, in the aggregate, shall occur during any twelve month periodperiod and (iii) each Suspension shall be separated by a period of at least 30 days from a prior Suspension (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”). In the event that there occurs a Suspension (or part thereof) that does not constitute a Qualifying Suspension, unlessthe Company shall pay to the Purchaser, in on the good faith judgment 30th day following the first day of such Suspension (or the first day of such part), and on each 30th day thereafter, an amount equal to 1% of the Company’s Board of Directors, upon Purchase Price paid for the written opinion of counsel of counsel, Shares purchased by the sale of Shares under Purchaser and not previously sold by the Registration Statement in reliance Purchaser with such payments to be prorated on this paragraph 7.2(d) would a daily basis during each 30 day period and will be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability paid to the CompanyPurchaser by wire transfer or check within five business days after the end of each 30 day period following.
(ed) Provided that If a Suspension is not then in effect, the Investor Purchasers may sell Shares Registrable Securities under the Registration Statement, provided that it arranges for they comply with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, a Purchaser and shall supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In The Company agrees that it shall, immediately prior to the event Registration Statement being declared effective, deliver to its transfer agent an opinion letter of a counsel, opining that at any time the Registration Statement is effective, the transfer agent may issue, in connection with the sale of Shares by the Investor Registrable Securities, certificates representing such Registrable Securities without restrictive legend, provided the Registrable Securities are to be sold pursuant to the prospectus contained in the Registration Statement. Upon receipt of such opinion, the Investor must also deliver Company shall cause the transfer agent to confirm that no further opinion of counsel is required at the time of transfer in order to issue such Registrable Securities without restrictive legend.
(f) The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Registrable Securities from the Purchasers, if no Suspension is in effect at the time of sale, and (a) the sale of such Registrable Securities is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act); (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the Company’s effect that a public sale or transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares such Registrable Securities may be properly transferredmade without registration under the Securities Act; or (c) such Registrable Securities are sold in compliance with Rule 144 under the Securities Act.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (Mattersight Corp), Common Stock Purchase Agreement (Mattersight Corp)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 6.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i6.2(b)(i) as the Investor may reasonably request; and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on for more than two occasions of not more than 30 60 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel of counselthe Company, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d6.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for complies with any prospectus delivery requirement then applicable to it. Upon receipt of a current Prospectus request therefor, the Company has agreed to the transferee of such Shares. The Company shall provide such an adequate number of current Prospectuses (including documents incorporated by reference therein) to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Spire Corp), Stock Purchase Agreement (Spire Corp)
Transfer of Shares After Registration; Suspension. (a) The Investor Each Purchaser agrees that it will not effect any disposition of the Shares or its right to purchase the Converted Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 8.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company Issuer in writing of any changes in the information set forth in the Registration Statement regarding the Investor Purchaser or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company Issuer shall (i) if deemed necessary by the CompanyIssuer, 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 therein, in light of the circumstances under which they were made, not misleading, and so that, as thereafter delivered to purchasers of the Converted Shares 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 Investor Purchasers copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request; 8.2(b)(i), and (iii) inform each Investor Purchaser that the Company Issuer has complied with its obligations in Section 7.2(b)(i8.2(b)(i) (or that, if the Company Issuer has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company Issuer will notify the Investor Purchasers to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i8.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in 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 Issuer of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Converted Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 Issuer shall promptly deliver a certificate in writing to the Investor Purchasers (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchasers will refrain from selling any Converted Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s Purchasers’ receipt of copies of a supplemented or amended Prospectus prepared and filed by the CompanyIssuer, or until it is the Purchasers are advised in writing by the Company Issuer that the current Prospectus may be used, and has have received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, the Company Issuer will use its best commercially reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon promptly as reasonably practicable within 20 business days possible after the delivery of a Suspension Notice to the InvestorPurchasers.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor Purchasers may sell Converted Shares under the Registration StatementStatement in the manner set forth under the caption “Plan of Distribution” in the Prospectus, provided that it each arranges for delivery of a current Prospectus to the transferee of such Converted Shares. The Company shall Upon receipt of a request therefor, the Issuer has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, Purchasers and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Contango Oil & Gas Co), Securities Purchase Agreement (Contango Oil & Gas Co)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended suspended, to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investorpracticable.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such SharesShares (or arranges for delivery of such to the transferee's broker). The Upon receipt of a written request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In the event of a sale of Shares by the Investor pursuant to the Registration StatementInvestor, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AH to the Placement Memorandum, so that the Shares may be properly transferred.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Crosswalk Com), Stock Purchase Agreement (Crosswalk Com)
Transfer of Shares After Registration; Suspension. (a) The Each Investor agrees that it will not effect any disposition of the Shares or its their right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the S-3 Registration Statement referred to in Section 7.1 hereof and as described below or as otherwise permitted by law, and that it such Investor will promptly notify the Company of any changes in the information set forth in the S-3 Registration Statement regarding the such Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 7.2(c) below applies, the Company shall (i) if deemed necessary by the Company, prepare and file from time to time with the SEC a post-effective amendment to the S-3 Registration Statement or a supplement to the related Prospectus prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such S-3 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 Shares being sold thereunder, such Prospectus 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 each Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(b)(i) (or that, if the Company has filed a post-effective amendment to the S-3 Registration Statement which has not yet been declared effective, the Company will notify the each Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the each Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) belowSection 7.2(d), 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 S-3 Registration Statement for amendments or supplements to a the S-3 Registration Statement or related Prospectus 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 the S-3 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, necessitates the making of any changes in the S-3 Registration Statement or Prospectusprospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the S-3 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 Prospectusprospectus, 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 deliver a certificate in writing to the each Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the such Investor will refrain from selling any Shares pursuant to the S-3 Registration Statement (a “"Suspension”") until the such Investor’s 's receipt of copies of a supplemented or amended Prospectus prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus 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 Prospectusprospectus. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the InvestorInvestors. The time periods set forth in Section 7.1(c) hereof for which the Company is required to maintain the effectiveness of the S-3 Registration Statement shall be extended by the aggregate number of days of all Suspensions. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investors, the Investors shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor Investors shall not be prohibited from selling Shares under the S-3 Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve twelve-month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the S-3 Registration Statement in reliance on this paragraph Section 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the each Investor may sell Shares under the S-3 Registration Statement, provided that it arranges for delivery of a current Prospectus prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses prospectuses to the each Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectusesprospectuses.
(f) In the event of a sale of Shares by the any Investor pursuant to the S-3 Registration Statement, the such Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AD, and its stock certificate, so that the Shares may be properly transferred.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Orphan Medical Inc), Stock Purchase Agreement (Orphan Medical Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor Buyer agrees that it will not effect any disposition of the Shares Securities or its right to purchase the Shares Securities that would constitute a sale "sale" within the meaning of the Securities Act Act, except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor Buyer or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares and Warrant Shares 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 Investor Buyer copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor Buyer may reasonably request; and (iii) inform each Investor Buyer that the Company has complied with its obligations in Section 7.2(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 Investor Buyer to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Buyer pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event of: (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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor Buyer (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Buyer will refrain from selling any Shares and Warrant Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’s Buyer'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. In the event of any Suspension, 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 within 20 business trading days after the delivery of a Suspension Notice to the InvestorBuyer.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor Buyer shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 20 trading days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor Buyer may sell the Shares and the Warrant Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares or Warrant Shares, as applicable. The Company shall provide such number of current Prospectuses to the Investor Buyer as the Investor Buyer may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Avanir Pharmaceuticals), Securities Purchase Agreement (Avanir Pharmaceuticals)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares 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 the Registration Statement referred to in Section 7.1 1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request2(b)(i); and (iii) upon request, inform each the Investor that the Company has complied with its obligations in Section 7.2(b)(i2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business 30 days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.22, the Investor Company shall not suspend the Registration Statement which causes the Investor to be prohibited from selling Shares under the Registration Statement as a result of Suspensions such Suspension on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment and any such Suspension must be separated by a period of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(dat least thirty (30) would be reasonably likely to cause days from a violation of the Securities Act or the Exchange Act and result in liability to the Companyprior Suspension.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall will provide such the requested number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Micro Therapeutics Inc), Securities Purchase Agreement (Micro Investment LLC)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Except if Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b5.4(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary or advisable by the Company, 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 Shares 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 Investor Purchaser copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request5.4(a)(i); and (iii) upon request, inform each Investor the Purchaser if he so requests that the Company has complied with its obligations in Section 7.2(b)(i5.4(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 Investor Purchaser to that effect, will use its reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i5.4(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) below, in the event If: (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 the 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 the 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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor Purchaser (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchaser will refrain from selling any Shares Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it Purchaser is advised in writing by the Company that the current Prospectus may be used, and has received copies from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of If any SuspensionSuspension occurs, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorPurchaser. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Purchaser, each of the Company and the Purchaser is entitled to specific performance if the other party fails to comply with the provisions of this Section 5.4(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.25.4, the Investor Company shall use its reasonable best efforts to ensure that (i) a Suspension shall not exceed 30 days individually, (ii) Suspensions covering no more than 45 days, in the aggregate, shall occur during any twelve month period and (iii) each Suspension must be prohibited separated by a period of at least 30 days from selling Shares under a prior Suspension (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”).
(d) The Company shall, immediately following the Registration Statement as being declared effective, cause its counsel to issue a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written legal opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Company shall provide such number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy agent to effect the removal of the restrictive legend contemplated by this Agreement. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Agreement. Certificates for Registrable Securities subject to legend removal hereunder shall be transmitted by the transfer agent of the Company to the Company, a Certificate Purchaser by crediting the account of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that Purchaser’s prime broker with the Shares may be properly transferredDepository Trust Company system.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (NANOPHASE TECHNOLOGIES Corp), Common Stock Purchase Agreement (NANOPHASE TECHNOLOGIES Corp)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit EXHIBIT A, so that the Shares may be properly transferred.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Medicines Co/ Ma), Stock Purchase Agreement (Warburg Pincus Ventures Lp)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will Purchaser shall not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale or resale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it the Purchaser will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor Purchaser or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares 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 Investor Purchaser copies of any documents filed pursuant to Section 7.2(b)(i6.3(b)(i) as the Investor Purchaser may reasonably request; and (iii) inform each Investor Purchaser that the Company has complied with its obligations in Section 7.2(b)(i6.3(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 Investor Purchaser to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i6.3(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event (i) of any request by the SEC or any other federal or state governmental authority 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 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 Shares for sale resale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor Purchaser (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchaser will refrain from selling reselling any Shares pursuant to the Registration Statement (a “Suspension”) until the InvestorPurchaser’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. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorPurchaser. 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 6.3(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.26.3, the Investor Purchaser shall not be prohibited from selling reselling Shares under the Registration Statement as a result of Suspensions on for more than two occasions of not more than 30 60 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counselthe Company, the sale resale of Shares under the Registration Statement in reliance on this paragraph 7.2(d6.3(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor Purchaser may sell resell Shares under the Registration Statement, provided that it arranges for complies with any prospectus delivery requirement then applicable to it. Upon receipt of a current Prospectus request therefor, the Company has agreed to the transferee of such Shares. The Company shall provide such an adequate number of current Prospectuses (including documents incorporated by reference therein) to the Investor as the Investor may reasonably request, Purchaser and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (World Energy Solutions, Inc.)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares 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 the Registration Statement referred to in Section 7.1 6.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(b)(i); and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Company shall use its best efforts to ensure that the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period. If a Suspension is in effect for more than 60 days (consecutive or non-consecutive) in any twelve-month period, unlessthe Company shall, on the 61st day of the Suspension and each 30th day thereafter, make payments to the Investor as partial compensation for such delay until the Suspension is lifted. The amount of the payments made to the Investor will be equal to 1% of the purchase price paid for the Shares purchased by the Investor and not previously sold by the Investor for each 30 days that sales cannot be made under the effective Registration Statement (but in no event to exceed 8% in the good faith judgment aggregate) beyond the period allowed by the previous sentence. The number of Shares not previously sold as specified in the previous sentence shall be determined as of the Company’s Board end of Directorsthe respective 30 day period. These payments will be prorated on a daily basis during the 30 day period and will be paid to the Investor by check within five business days following the end of each month as to which payment is due hereunder, upon assuming that the written opinion of counsel of counsel, Investor delivered to the sale Company at least two business days prior thereto information with respect to the number of Shares under not previously sold by the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the CompanyInvestor (together with reasonable supporting documentation).
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to Investor, unless such requirement is waived by the Registration StatementCompany in writing, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AC, so that the Shares shares may be properly transferred.
(g) The Company agrees that it shall, immediately prior to the Registration Statement being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that at any time the Registration Statement is effective, the transfer agent shall issue, in connection with the sale of the Shares, certificates representing such Shares without restrictive legend, provided the Shares are to be sold pursuant to the prospectus contained in the Registration Statement and the transfer agent receives a Certificate of Subsequent Sale in the form attached hereto as Exhibit C. Upon receipt of such opinion, the Company shall cause the transfer agent to confirm, for the benefit of the Investor, that no further opinion of counsel is required at the time of transfer in order to issue such Shares without restrictive legend. In the event of any sale of the Shares in accordance with this Agreement, the restrictive legend shall be removed and the Company shall issue a certificate without such legend to the purchaser of any such Shares, if (a) the sale of such Shares is registered under the Registration Statement (including registration pursuant to Rule 416 under the Securities Act); (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Shares may be made without registration under the Securities Act; or (c) such Shares are sold in compliance with Rule 144 under the Securities Act.
Appears in 1 contract
Samples: Stock Purchase Agreement (Endocardial Solutions Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 6.2(b) below applies, the Company shall during the Effectiveness Period: (i) if deemed necessary or advisable by the Company, 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 Shares 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 Investor copies Purchaser copies, or access to copies, of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(a)(i); and (iii) upon request, inform each Investor the Purchaser that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor Purchaser to that effect, will use its reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) belowSection 6.1(c), in the event 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 the 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 the 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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor Purchaser (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchaser will refrain from selling any Shares Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it Purchaser is advised in writing by the Company that the current Prospectus may be used, and has have received copies copies, or access to copies, from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorPurchaser. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Purchaser, the Company and the Purchaser shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 6.2(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its reasonable best efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of exceed 30 days individually, (ii) Suspensions on covering no more than two occasions of not more than 30 days each 45 days, in the aggregate, shall occur during any twelve month periodperiod and (iii) each Suspension shall be separated by a period of at least 30 days from a prior Suspension (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”).
(d) During the Effectiveness Period, unless, the Company shall cause Certificates evidencing the Registrable Securities not to contain any restrictive legend (including the legend set forth in the good faith judgment Section 3.3(b)): (i) following a resale of the CompanyShares under an effective registration statement (including the Registration Statement) covering such Registrable Securities, or (ii) following a sale of such Registrable Securities pursuant to Rule 144, or (iii) while such Registrable Securities are eligible for sale under Rule 144 and, with respect to the Purchaser’s Board of Directors, upon the written opinion of counsel of counselShares, the sale Purchaser is not and has not been for three months an affiliate of the Company (as such term is defined in Rule 144(a)(1)) and such Shares have been held for one year or more pursuant to the requirements of Rule 144 and any other requirements under the Registration Statement in reliance on this paragraph 7.2(dRule 144 have been satisfied at such time, or (iv) would be reasonably likely to cause a violation if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the Staff of the SEC). Following such time as restrictive legends are not required to be placed on Certificates representing Shares, the Company will, no later than three Trading Days following the delivery by the Purchaser to the Company or the Exchange Act and result in liability Company’s transfer agent of a Certificate representing Registrable Securities containing a restrictive legend, deliver or cause to be delivered to the Purchaser a Certificate representing such Registrable Securities that is free from all restrictive legends. Promptly after the Registration Statement is declared effective by the SEC, the Company will cause its counsel to issue a legal opinion to the Company.
(e) Provided that a Suspension is not then ’s transfer agent to effect the removal of the restrictive legend contemplated by this Agreement upon request by the Purchaser in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Company shall provide such number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of connection with a sale of Shares the Purchaser’s Registrable Securities by the Investor Purchaser pursuant to the Registration Statement, . The Company may not make any notation on its records or give instructions to any transfer agent of the Investor must also deliver Company that enlarge the restrictions on transfer set forth in this Agreement. Certificates for Registrable Securities subject to legend removal hereunder shall be transmitted by the transfer agent of the Company to the CompanyPurchaser by crediting the account of the Purchaser’s transfer agent, prime broker with a copy to the Company, a Certificate of Subsequent Sale substantially in Depository Trust Company system unless the form attached hereto as Exhibit A, so that the Shares may be properly transferredPurchaser provides alternate written instructions.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Fusion Connect, Inc.)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 6.2(b) below applies, the Company shall shall: (i) if deemed necessary or advisable by the Company, prepare and file from time to time with the SEC a post-effective amendment to the Registration Statement Statements 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 Statements 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 Common Shares 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 Investor Purchasers and August 2006 Bridge Investors copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(a)(i); and (iii) upon request, inform each Purchaser and August 2006 Bridge Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement Statements which has not yet been declared effective, the Company will notify the Purchaser or August 2006 Bridge Investor to that effect, will use its commercially reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Purchaser or August 2006 Bridge Investor pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) belowSection 6.2(c), in the event 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 Statements for amendments or supplements to a the Registration Statement Statements 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 the Registration Statement Statements 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 Common Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, which necessitates the making of any changes in the Registration Statement Statements or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration StatementStatements, it will not contain any untrue statement of a material fact or any omission omit 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 omit 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 the Investor Purchasers (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchasers and August 2006 Bridge Investors will refrain from selling any Common Shares pursuant to the Registration Statement Statements (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared Purchasers and filed by the Company, or until it is August 2006 Bridge Investors are advised in writing by the Company that the current Prospectus may be used, and has have received copies from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorPurchasers and August 2006 Bridge Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company, the Purchasers and August 2006 Bridge Investors, the Company, the Purchasers and the August 2006 Bridge Investors shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 6.2(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its commercially reasonable best efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of exceed 30 days individually, (ii) Suspensions on covering no more than two occasions of not more than 30 days each 45 days, in the aggregate, shall occur during any twelve month periodperiod and (iii) each Suspension shall be separated by a period of at least 30 days from a prior Suspension (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”). In the event that there occurs a Suspension (or part thereof) that does not constitute a Qualifying Suspension, unless, in the good faith judgment Company shall pay to the Purchaser and August 2006 Bridge Investor an amount equal to 1% of the Company’s Board purchase price paid for the securities purchased by the Purchaser or August 2006 Bridge Investor and not previously sold by the Purchaser or August 2006 Bridge Investor, with such payments to be prorated on a daily basis during each 30 day period and paid to the Purchaser and August 2006 Bridge Investor by wire transfer or check within five business days after the end of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation each 30 day period following. In no event will these payments exceed 9% of the Securities Act or the Exchange Act and result in liability to the Company.purchase price for such securities
(ed) Provided that If a Suspension is not then in effect, the Investor Purchasers and August 2006 Bridge Investors may sell Common Shares under the Registration StatementStatements, provided that it arranges for they comply with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the a Purchaser or August 2006 Bridge Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In The Company agrees that it shall, immediately prior to the event Registration Statements being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that at any time a Registration Statement is effective, the transfer agent may issue, in connection with the sale of the Common Shares covered by the Investor effective Registration Statement, certificates representing such Common Shares without restrictive legend, provided such Common Shares are to be sold pursuant to the prospectus contained in the effective Registration Statement. Upon receipt of such opinion, the Investor must also deliver Company shall cause the transfer agent to confirm, for the benefit of the Purchasers and August 2006 Bridge Investors, that no further opinion of counsel is required at the time of transfer in order to issue such Common Shares without restrictive legend. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Common Shares from the Purchasers or August 2006 Bridge Investors, if no Suspension is in effect at the time of sale, and (a) the sale of such Common Shares is registered under a Registration Statement (including registration pursuant to Rule 415 under the Securities Act); (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the Company’s effect that a public sale or transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the such Common Shares may be properly transferredmade without registration under the Securities Act; or (c) such Common Shares are sold in compliance with Rule 144 under the Securities Act. In addition, the Company shall remove the restrictive legend from any Common Shares held by the Purchasers or August 2006 Bridge Investors following the expiration of the holding period required by Rule 144(k) under the Securities Act (or any successor rule).
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Photoworks Inc /Wa)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees ------------------------------------------------- that it will shall not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below 5.1 or as otherwise permitted by law, and that it will shall promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(ba) The Company agrees that any Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) filed by the Company covering the Shares shall not contain any 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 in which they were made, not misleading. Except in the event that paragraph subsection (c) below applies, the Company shall as soon as is practicable: (i) if deemed necessary by notify the Company, Investor and 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 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 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, and so that, as thereafter delivered to purchasers the Investor of the Shares being sold thereunder, such Prospectus will prospectus 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, in light of the circumstances under which they were made, not misleading; (ii) provide the Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request5.3(b)(i); and (iii) inform each the Investor that the Company has complied with its obligations in Section 7.2(b)(i5.3(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 shall notify the Investor to that effect, will shall use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will shall promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) below, in In the event 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 a related Prospectus 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, which necessitates the making of any changes in the Registration Statement or Prospectusprospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will shall 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 Prospectusprospectus, it will shall 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will shall refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’s 's receipt of copies of a supplemented or amended Prospectus prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus 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 Prospectusprospectus. In the event of any Suspension, the Company will shall use its best commercially reasonable efforts to cause the use of the Prospectus prospectus so suspended to be resumed as soon as practicable, shall prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and shall deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably practicable within 20 business days after the delivery of a Suspension Notice request. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 5.3(b). Subject to the Company's rights under this Section 5.3(b), the Company shall use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement as a result and, if such an order is issued, shall use its commercially reasonable efforts to obtain the withdrawal of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in such order at the good faith judgment earliest possible time and to notify the Investor that holds the Shares being sold of the Company’s Board issuance of Directors, upon such order and the written opinion resolution thereof. If the use of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation is suspended by the Company, the Company shall promptly give notice of the Securities Act or the Exchange Act and result in liability suspension to the CompanyInvestor and shall promptly notify the Investor as soon as the use of the Registration Statement may be resumed.
(ec) Provided that a Suspension is not then in effect, the Investor may sell the Shares (subject to the 15,000 Shares per trading day limitation set forth in Section 2.1 above), under the Registration Statement, provided that it arranges for delivery of a current Prospectus prospectus to the transferee of such Shares. The Upon receipt of a request therefore, the Company shall has agreed to provide such an adequate number of current Prospectuses prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectusesprospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Securities Purchase Agreement (Constellation 3d Inc)
Transfer of Shares After Registration; Suspension. (a) The Each Investor agrees that it will not effect any disposition of the Shares Shares, or its right to purchase the Shares Shares, that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below 0 of this Agreement or, in accordance with Section 0 of this Agreement or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) shall: if deemed necessary by the Companyit deems necessary, prepare and file from time to time with the SEC a one or more post-effective amendment amendments to the Registration Statement or a supplement supplements 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 Shares 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 the light of the circumstances under which they were made, not misleadingmisleading (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act); (ii) and as soon as practicable provide the to each Investor copies of any documents filed pursuant to the preceding Section 7.2(b)(i) as the Investor may reasonably request; and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(b)(i9.3(b)(i) (other than any amendment or that, if supplement through incorporation by reference of any report filed under the Company has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company will notify the Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effectiveExchange Act).
(c) Subject to paragraph (d) below, in the event (i) of of: any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement Effectiveness Period for amendments or supplements to a the 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 the 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 qualification) of any of the Shares Registrable Securities for sale in any jurisdiction in which they have been qualified for sale or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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, Prospectus 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 the each Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the such Investor will refrain from selling any Shares Registrable Securities pursuant to the Registration Statement (a “"Suspension”") until such Investor receives from the Investor’s receipt of Company 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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor, and the Company shall as soon as practicable provide each Investor with copies of any supplemented or amended Prospectus or, as the case may be, advise each Investor in writing that the current Prospectus may be used.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2In addition, subject to compliance with applicable law, the Investor Company shall not be prohibited from selling Shares use its best efforts to ensure that the Company's transfer agent expeditiously effects all sales of Registrable Securities under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under have from time to time, including the Registration Statement, provided that it arranges for delivery prompt removal of a current Prospectus to the transferee of such Shares. The Company shall provide such number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectusesrestrictive legends.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor Each Purchaser agrees that it will not effect any disposition of the Shares or its right to purchase the Exchange Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company Parent in writing of any changes in the information set forth in the Registration Statement regarding the Investor Purchaser or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company Parent shall (i) if deemed necessary by the Company, Parent: (i) prepare and file from time to time with the SEC Commission 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 therein, in light of the circumstances under which they were made, not misleading, and so that, as thereafter delivered to purchasers of the Shares Common Stock 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 Investor Purchasers copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request; 7.3(b)(i), and (iii) inform each Investor Purchaser that the Company Parent has complied with its obligations in Section 7.2(b)(i7.3(b)(i) (or that, if the Company Parent has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company Parent will notify the Investor Purchasers to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i7.3(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in In the event of (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 Parent of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Exchange Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 Parent shall promptly deliver a certificate notice in writing to the Investor Purchasers (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchasers will refrain from selling any Exchange Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’s Purchasers' receipt of copies of a supplemented or amended Prospectus prepared and filed by the CompanyParent, or until it is the Purchasers are advised in writing by the Company Parent that the current Prospectus may be used, and has have received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, the Company Parent will use its best commercially reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon promptly as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the InvestorPurchasers. Notwithstanding the foregoing, Parent shall not be required to amend or supplement the Registration Statement, any related Prospectus or any document incorporated therein by reference in the event that, and for a period (a "Black Out Period") not to exceed, for so long as this Agreement is in effect, thirty (30) days consecutively in any ninety (90) day period or ninety (90) days in any twelve (12) month period if either (A) any action by Parent pursuant to this Section 7.4(c) would violate applicable law or (B) (x) an event occurs and is continuing as a result of which the Registration Statement, any related Prospectus or any document incorporated therein by reference as then amended or supplemented would, in Parent's good faith judgment, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (y) (1) Parent determines in good faith that the disclosure of such event at such time would have a material adverse effect on the business, operations or prospects of Parent or (2) the disclosure otherwise relates to a material business transaction which has not yet been publicly disclosed in any relevant jurisdiction.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension or a Black Out Period is not then in effect, the Investor Purchasers may sell Exchange Shares received pursuant to this Agreement under the Registration StatementStatement in the manner set forth under the caption "Plan of Distribution" in the Prospectus, provided that it each arranges for delivery of a current Prospectus to the transferee of such the Exchange Shares. The Company shall Upon receipt of a request therefor, Parent agrees to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, Purchasers and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Abraxas Energy Partners LP)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 6.2(b) below applies, the Company shall shall: (i) if deemed necessary or advisable by the Company, 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 Common Shares 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 Investor Purchasers copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(a)(i); and (iii) upon request, inform each Investor Purchaser who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor Purchaser to that effect, will use its commercially reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) belowSection 6.2(c), in the event 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 the 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 the 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 Common Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor Purchasers (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchasers will refrain from selling any Common Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Purchasers are advised in writing by the Company that the current Prospectus may be used, and has have received copies from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorPurchasers. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Purchaser, the Company and the Purchasers shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 6.2(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its commercially reasonable best efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of exceed 30 days individually, (ii) Suspensions on covering no more than two occasions of not more than 30 days each 45 days, in the aggregate, shall occur during any twelve month periodperiod and (iii) each Suspension shall be separated by a period of at least 30 days from a prior Suspension (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”). In the event that there occurs a Suspension (or part thereof) that does not constitute a Qualifying Suspension, unlessthe Company shall pay to the Purchaser, in on the good faith judgment 30th day following the first day of such Suspension (or the first day of such part), and on each 30th day thereafter, an amount equal to 1% of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of Purchase Price paid for the Securities Act or purchased by the Exchange Act Purchaser and result in liability not previously sold by the Purchaser with such payments to be prorated on a daily basis during each 30 day period and will be paid to the CompanyPurchaser by wire transfer or check within five business days after the end of each 30 day period following.
(ed) Provided that If a Suspension is not then in effect, the Investor Purchasers may sell Common Shares under the Registration Statement, provided that it arranges for they comply with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, a Purchaser and shall supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In The Company agrees that it shall, immediately prior to the event Registration Statement being declared effective, deliver to its transfer agent an opinion letter of a counsel, opining that at any time the Registration Statement is effective, the transfer agent may issue, in connection with the sale of the Common Shares, certificates representing such Common Shares by without restrictive legend, provided the Investor Common Shares are to be sold pursuant to the prospectus contained in the Registration Statement. Upon receipt of such opinion, the Investor must also deliver Company shall cause the transfer agent to confirm, for the benefit of the Purchasers, that no further opinion of counsel is required at the time of transfer in order to issue such Common Shares without restrictive legend. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Common Shares from the Purchasers, if no Suspension is in effect at the time of sale, and (a) the sale of such Common Shares is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act); (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the Company’s effect that a public sale or transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the such Common Shares may be properly transferredmade without registration under the Securities Act; or (c) such Common Shares are sold in compliance with Rule 144 under the Securities Act. In addition, the Company shall remove the restrictive legend from any Common Shares held by the Purchasers following the expiration of the holding period required by Rule 144 under the Securities Act (or any successor rule).
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Research Frontiers Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor Subscriber agrees that it will not effect any disposition of the Shares Securities or its right to purchase the Shares Securities that would constitute a sale within the meaning of the Securities Act except other than transactions exempt from the registration requirements of the Securities Act, as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor Subscriber or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor Subscriber copies of any documents filed pursuant to Section 7.2(b)(i2(b)(i) as the Investor may reasonably requestof this Exhibit C; and (iii) upon request, inform each Investor Subscriber who so requests that the Company has complied with its obligations in Section 7.2(b)(i2(b)(i) of this Exhibit (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 Investor Subscriber to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Subscriber pursuant to Section 7.2(b)(i2(b)(i) hereof of this Exhibit C when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor Subscriber (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Subscriber will refrain from selling any Shares Securities pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it Subscriber 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. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorSubscriber. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Subscriber, the Subscriber shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 2(c). The Subscriber covenants that from the date hereof it will maintain in confidence the receipt and content of any Suspension Notice provided in accordance with this paragraph (c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.22, the Investor Company shall use its commercially reasonable efforts to ensure that: (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on exceed sixty (60) days individually, and (ii) no more than two occasions of not more than 30 days each in three (3) Suspensions shall occur during any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that If a Suspension is not then in effect, the Investor Subscriber may sell Shares Securities under the Registration Statement, provided that it arranges for complies with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, Subscriber and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares Securities by the Investor pursuant to Subscriber, unless such requirement is waived by the Registration StatementCompany in writing, the Investor Subscriber must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit Schedule A, so that the Shares Securities may be properly transferred.
(g) The Company agrees that it shall, immediately prior to the Registration Statement being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that at any time the Registration Statement is effective, the transfer agent shall issue, in connection with the sale of the Securities, certificates representing such Securities without restrictive legend, provided the Securities are to be sold pursuant to the Prospectus contained in the Registration Statement and the transfer agent receives a Certificate of Subsequent Sale in the form attached hereto as Schedule A. Upon receipt of such opinion, the Company shall cause the transfer agent to confirm, for the benefit of the Subscriber, that no further opinion of counsel is required at the time of transfer in order to issue such Securities without restrictive legend. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Securities from the Subscriber, if: (a) the sale of such Securities is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act) and the Subscriber has delivered a Certificate of Subsequent Sale to the Transfer Agent; (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Securities may be made without registration under the Securities Act; or (c) such Securities are sold in compliance with Rule 144 under the Securities Act. In addition, the Company shall, at the request of the Subscriber, remove the restrictive legend from any Securities held by the Subscriber following the expiration of the holding period required by Rule 144(k) under the Securities Act (or any successor rule).
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Colorado Goldfields Inc.)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition or other transfer of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except other than transactions exempt from the registration requirements of the Securities Act, as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor with either copies of any documents filed pursuant to Section 7.2(b)(i2(b)(i) as the Investor may reasonably requestor access to such documents electronically; and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, which necessitates the making of any material 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 omit 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 omit 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 or electronically to the Investor (the “Suspension Notice”"SUSPENSION NOTICE") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”"SUSPENSION") until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Investors are 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. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 2(c). The Investor covenants that from the date hereof it will maintain in confidence the receipt and content of any Suspension Notice provided in accordance with this paragraph (c) in accordance with and subject to Section 4.6 of Annex I to the Securities Purchase Agreement.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that If a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for complies with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In the event of a sale of Shares by the Investor pursuant to Investor, unless such requirement is waived by the Registration StatementCompany in writing, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
(f) The Company agrees that it shall, immediately prior to the Registration Statement being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that at any time the Registration Statement is effective, the transfer agent shall issue, in connection with the sale of the Shares, certificates representing such Shares without restrictive legend, provided the Shares are to be sold pursuant to the Prospectus contained in the Registration Statement and the transfer agent receives a Certificate of Subsequent Sale in the form attached hereto as Exhibit "A." Upon receipt of such opinion, the Company shall cause the transfer agent to confirm, for the benefit of the Investor, that no further opinion of counsel is required at the time of transfer in order to issue such Shares without restrictive legend. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Shares from the Investor at Investor's expense and upon request of Investor, if (a) the sale of such Shares is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act) and the Investor has delivered a Certificate of Subsequent Sale to the Transfer Agent; (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Shares may be made without registration under the Securities Act; or (c) such Shares are sold in compliance with Rule 144 under the Securities Act. In addition, the Company shall, at the Investors expense and upon request of the Investor, remove the restrictive legend from any Shares held by the Investor following the expiration of the holding period required by Rule 144(k) under the Securities Act (or any successor rule).
Appears in 1 contract
Samples: Registration Rights Agreement (Ilinc Communications Inc)
Transfer of Shares After Registration; Suspension. (a) a. The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (iA) if deemed necessary by the Company, 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 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 any 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 Shares Registrable Securities being sold thereunder, such Prospectus prospectus will not contain an any 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; (iiB) provide the Investor Selling Holders copies of any documents filed pursuant to Section 7.2(b)(iclause (A) as the Investor may reasonably requestabove; and (iiiC) inform each Investor Selling Holder that the Company has complied with its obligations in Section 7.2(b)(iclause (A) above (or that, if the Company has filed a post-post effective amendment to the Registration Statement which has not yet been declared effective, the Company will notify the Investor Selling Holder to that effect, will use its reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Selling Holder pursuant to Section 7.2(b)(iclause (A) hereof above when the amendment has become effective). At least three (3) business days prior to the first anticipated filing of 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 pursuant to this Section 4(a), the Company shall provide copies of such post-effective amendment, supplement or required document(s) to each Selling Holder and its respective counsel.
(c) Subject to paragraph (d) below, in b. In the event (iA) 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 prospectus or for additional information; (iiB) 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; (iiiC) 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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (ivD) of any event or circumstance which, upon in the advice good faith judgment of its counselthe Company's Chief Executive Officer and Chief Financial Officer, necessitates the making of makes it advisable to make any changes in the Registration Statement or Prospectusprospectus, 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 Prospectusprospectus, 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 deliver a certificate notice in writing to the each Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the each Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") and will keep confidential the fact that a Suspension Notice has been issued and the content thereof until the Investor’s 's receipt of copies of a supplemented or amended Prospectus prospectus prepared and filed by the Company, or until it the Investor is advised in writing by the Company that the current Prospectus prospectus may be used, and the Investor has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectusprospectus. In The Company shall use its reasonable best efforts to prevent the event issuance of any Suspension, the Company will use its best efforts and, if any such Suspension is issued, to take such action as may be necessary to cause the use withdrawal or termination of such Suspension at the earliest possible moment and to notify the Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the Prospectus so suspended issuance of such Suspension and the resolution thereof. Notwithstanding Section 4(a) or the foregoing sentence, for an aggregate period of no more than 60 days over any 12 month period, the Company shall not be required to file any document or make any public disclosure necessary to end a Suspension, if at such time, the board of directors of the Company determines in good faith that taking such action would be resumed seriously detrimental to the Company and its shareholders (and the Company provides to the Investors a certificate of the Chief Executive Officer or Chief Financial Officer of the Company as soon to such). In addition to and without limiting any other remedies (including, without limitation, remedies available under applicable law or in equity) available to the Selling Holders, each Selling Holder shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 4(b).
c. The Company may require each Investor participating in any registration to furnish to the Company such information regarding such Investor as required under applicable law and such Investor's intended method of distribution of such Registrable Securities as the Company may from time to time reasonably practicable within 20 request in writing. At least five (5) business days after prior to the delivery first anticipated filing date of a Suspension Notice to registration statement, the Company shall notify each Investor of the information the Company requires from each Investor.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) d. Provided that a Suspension is not then in effect, the any Investor may sell Shares Registrable Securities registered under the Registration Statement, provided that it arranges for delivery of a current Prospectus prospectus to the transferee of such SharesRegistrable Securities in compliance with applicable law. The Upon receipt of a request therefor, the Company shall agrees to provide such an adequate number of current Prospectuses prospectuses to the Investor as the Investor may reasonably request, Selling Holders and shall to supply copies to any other parties reasonably requiring such Prospectusesprospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Registration Rights Agreement (Electrum Strategic Resources LLC)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition or other transfer of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except other than transactions exempt from the registration requirements of the Securities Act, as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor with either copies of any documents filed pursuant to Section 7.2(b)(i2(b)(i) as the Investor may reasonably requestor access to such documents electronically; and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, which necessitates the making of any material 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 omit 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 omit 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 or electronically to the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it Investor 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. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 2(c). The Investor covenants that from the date hereof it will maintain in confidence the receipt and content of any Suspension Notice provided in accordance with this paragraph (c) in accordance with and subject to Section 4.6 of Annex I to the Securities Purchase Agreement.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that If a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for complies with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In the event of a sale of Shares by the Investor pursuant to Investor, unless such requirement is waived by the Registration StatementCompany in writing, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, such documentation reasonably requested by the transfer agent including, without limitation, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
(f) The Company agrees that it shall, immediately prior to the Registration Statement being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that at any time the Registration Statement is effective, the transfer agent shall issue, in connection with the sale of the Shares, certificates representing such Shares without restrictive legend, provided the Shares are to be sold pursuant to the Prospectus contained in the Registration Statement and the transfer agent receives all of the documentation required by the transfer agent including the Certificate of Subsequent Sale in the form attached hereto as Exhibit “A.” The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Shares from the Investor at Investor’s expense and upon request of Investor, if (a) the sale of such Shares is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act) and the Investor has delivered a Certificate of Subsequent Sale to the Transfer Agent; (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Shares may be made without registration under the Securities Act; or (c) such Shares are sold in compliance with Rule 144 under the Securities Act. In addition, the Company shall, at the Investor’s expense and upon request of the Investor, remove the restrictive legend from any Shares held by the Investor following the expiration of the holding period required by Rule 144(k) under the Securities Act (or any successor rule).
Appears in 1 contract
Samples: Registration Rights Agreement (Arcadia Resources, Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor Subscriber agrees that it will not effect any disposition of the Shares Securities or its right to purchase the Shares Securities that would constitute a sale "sale" within the meaning of the Securities Act 1933 Act, except as contemplated in the Registration Statement referred to in Section 7.1 a) and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor Subscriber or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares and Warrant Shares 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 Investor Subscriber copies of any documents filed pursuant to Section 7.2(b)(i4)(i) as the Investor Subscriber may reasonably request; and (iii) inform each Investor Subscriber that the Company has complied with its obligations in Section 7.2(b)(i4)(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 Investor Subscriber to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Subscriber pursuant to Section 7.2(b)(i4)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event of: (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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor Subscriber (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Subscriber will refrain from selling any Shares and Warrant Shares pursuant to the Registration Statement (a “"Suspension”") until the InvestorSubscriber’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. In the event of any Suspension, 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 within 20 business trading days after the delivery of a Suspension Notice to the InvestorSubscriber.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2b), the Investor Subscriber shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 20 trading days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor Subscriber may sell the Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares, as applicable. The Company shall provide such number of current Prospectuses to the Investor Subscriber as the Investor Subscriber may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Each Investor agrees that it or he will not effect any disposition of the Shares or its right to purchase the Shares Share Consideration that would constitute a sale within the meaning of the Securities 1933 Act other than pursuant to transactions exempt from the registration requirements of the 1933 Act, except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it the Investor will promptly notify the Company Buyer of any material changes in the information set forth in the Registration Statement regarding the Investor or its the Investor’s plan of distribution. Each Investor also agrees that it or he will not sell any Share Consideration until the Buyer has filed with the SEC a Current Report on Form 8-K and/or any amendments thereto (collectively the “Transaction Form 8-K”) containing all of the information required by the Form 8-K with respect to the transactions contemplated by this Agreement.
(b) Except in the event that paragraph (cSection 5.12.3(c) below applies, the Company shall Buyer shall:
(i) if deemed necessary by the CompanyBuyer in its sole discretion, 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, misleading and so that, as thereafter delivered to purchasers of the Shares Share Consideration 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) promptly provide the Investor Investors copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request5.12.3(b)(i); and and
(iii) inform each Investor who so requests that the Company Buyer has complied with its obligations in Section 7.2(b)(i5.12.3(b)(i) (or that, if the Company Buyer has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company Buyer will notify the Investor to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i5.12.3(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in In the event of:
(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 the 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 the Registration Statement or the initiation of any proceedings for that purpose; ;
(iii) of the receipt by the Company Buyer of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares Share Consideration for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or or
(iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 Buyer shall promptly deliver a certificate in writing to the Investor Investors (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Investors will refrain from selling any Shares Share Consideration pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Investors are advised in writing by the Company Buyer that the current Prospectus may be used, used and has have received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, the Company Buyer will use its best commercially reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the InvestorInvestors and the period set forth in Section 5.12.1(c)(i) shall be tolled for the duration of such Suspension.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that If a Suspension is not then in effect, the each Investor may sell Shares Share Consideration under the Registration Statement, provided that it the Investor arranges for delivery of a current Prospectus to the transferee of such SharesShare Consideration. The Company shall Upon receipt of a request therefor, the Buyer will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(e) Prior to a sale of Share Consideration by the Investors, unless such requirement is waived by the Buyer in writing, the Investors must also deliver to the Buyer’s legal counsel, as identified by the Buyer, a properly completed and signed Certificate of Selling Agent or Broker substantially in the form attached hereto as Schedule 5.12.3(e) (each, a “Certificate of Selling Agent or Broker”) and a copy of the stock certificate(s) representing the Share Consideration to be sold so that the Share Consideration may be properly transferred. Upon receipt of a properly completed and signed Certificate of Selling Agent or Broker and a copy of the stock certificate(s) representing the Share Consideration to be sold, and if the Registration Statement is then in effect and no Suspension is in effect, the Buyer shall request that its legal counsel render an opinion to the Buyer’s transfer agent within two (2) Business Days after the receipt by its legal counsel of the Certificate of Selling Agent or Broker and a copy of the related stock certificate(s) that such sale of the Share Consideration is registered under the 1933 Act pursuant to the Registration Statement. The Investors shall conduct such sale in accordance with the representations in the Certificate of Selling Agent or Broker and such legal counsel’s opinion.
(f) In the event of a any sale of Shares by the Investor pursuant Share Consideration in accordance with this Agreement, the restrictive legend shall be removed with respect to the Share Consideration sold and the Buyer shall issue or cause to be issued a stock certificate without such legend to the purchaser of any such Share Consideration, only if:
(i) the sale of such Share Consideration is registered under the Registration Statement;
(ii) the holder has provided the Buyer with an opinion of counsel, the Investor must also deliver in form, substance and scope customary for opinions of counsel in comparable transactions, to the Company’s effect that a public sale or transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares such Share Consideration may be properly transferredmade without registration under the 1933 Act or other Applicable Laws; or
(iii) such Share Consideration is sold in compliance with Rule 144 under the 1933 Act or other Applicable Laws.
Appears in 1 contract
Samples: Asset Purchase Agreement (Image Sensing Systems Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 6.2(b) below applies, the Company shall shall: (i) if deemed necessary or advisable by the Company, prepare and file from time to time with the SEC applicable governmental authority a post-effective amendment to any Blue Sky Registration, 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 Blue Sky Registration or 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 Shares 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 Investor Purchasers copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(a)(i); and (iii) upon request, inform each Investor Purchaser who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement or any Blue Sky Registration which has not yet been declared effective, the Company will notify the Investor Purchaser to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) belowSection 6.2(c), in the event event: (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of any Blue Sky Registration or the Registration Statement or for amendments or supplements to a such Blue Sky Registration, the 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 such Blue Sky Registration or of the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, which necessitates the making of any changes in any Blue Sky Registration, the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of any Blue Sky Registration or the Registration Statement, it will not contain any untrue statement of a material fact or any omission omit 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 omit 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 the Investor Purchasers (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchasers will refrain from selling any Shares pursuant to such Blue Sky Registration or the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Purchasers are advised in writing by the Company that the current Blue Sky Registration or the Prospectus may be used, and has have received copies from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Blue Sky Registration or Prospectus. In the event of any Suspension, the Company will use its commercially reasonable best efforts to cause the use of the Blue Sky Registration or Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the InvestorPurchasers. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Purchaser, the Company and the Purchasers shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 6.2(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its commercially reasonable best efforts to ensure that (i) a Suspension shall not exceed 30 days individually, (ii) Suspensions covering no more than 45 days, in the aggregate, shall occur during any twelve month period and (iii) each Suspension shall be prohibited separated by a period of at least 30 days from selling a prior Suspension (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”). In the event that there occurs a Suspension (or part thereof) that does not constitute a Qualifying Suspension, the Company shall pay to the Purchaser, on the 30th day following the first day of such Suspension (or the first day of such part), and on each 30th day thereafter, an amount equal to 1% of the Purchase Price paid for the Shares under purchased by the Registration Statement Purchaser and not previously sold by the Purchaser with such payments to be prorated on a daily basis during each 30 day period and will be paid to the Purchaser by wire transfer or check within five business days after the end of each 30 day period following. The Company and the Purchaser each acknowledge that the payments provided for in this Section 6.2(c) bear a reasonable relationship to the anticipated loss that would be suffered by the Purchaser as a result of Suspensions on more than two occasions a Suspension and the actual loss the Purchaser would suffer as a result of not more than 30 days each in any twelve month period, unless, in the good faith judgment a Suspension is difficult to ascertain or incapable of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Companyestimation.
(ed) Provided that If a Suspension is not then in effect, the Investor Purchasers may sell Shares under the Registration StatementStatement and each Blue Sky Registration, provided that it arranges for they comply with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses or Blue Sky Registrations to the Investor as the Investor may reasonably request, a Purchaser and shall supply copies to any other parties reasonably requiring such Prospectusesdocuments.
(fe) In The Company agrees that it shall, immediately prior to the event Registration Statement and all Blue Sky Registrations being declared effective, deliver to its transfer agent an opinion letter of a counsel, opining that at any time the Registration Statement and the Blue Sky Registrations are effective, the transfer agent may issue, in connection with the sale of the Shares, certificates representing such Shares by without restrictive legend, provided the Investor Shares are to be sold pursuant to the prospectus contained in the Registration StatementStatement and any applicable Blue Sky Registration. Upon receipt of such opinion, the Investor must also deliver Company shall cause the transfer agent to confirm promptly, for the benefit of the Purchasers, that no further opinion of counsel is required at the time of transfer in order to issue such Shares without restrictive legend. The Company shall cause its transfer agent to issue promptly a certificate without any restrictive legend to a purchaser of any Shares from the Purchasers, if no Suspension is in effect at the time of sale, and (a) the sale of such Shares is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act) and all applicable blue sky laws; (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the Company’s effect that a public sale or transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the such Shares may be properly transferredmade without registration under the Securities Act or any blue sky law; or (c) such Shares are sold in compliance with Rule 144 under the Securities Act and all applicable blue sky laws. In addition, the Company shall remove the restrictive legend from any Shares held by the Purchasers following the expiration of the holding period required by Rule 144 under the Securities Act (or any successor rule) and all blue sky laws.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Location Based Technologies, Inc.)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cd) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) If any Investor shall propose to sell any Shares under the Registration Statement, the Investor shall notify the Company of its intent to do so on or before one (1) business day prior to the date of such sale (the "NOTICE OF SALE"), and the provision of the Notice of Sale to the Company. The Notice of Sale shall be deemed to constitute a representation that any information previously supplied by such Investor for use in the Registration Statement and then set forth in the Registration Statement is accurate as of the date of such Notice of Sale. The Notice of Sale in substantially the form attached herein shall be given in accordance with the provisions of Section 8 hereof. However, the Investor may give the Notice of Sale orally by telephoning the current Chief Financial Officer at the Company at (000) 000-0000. An oral Notice of Sale shall be deemed to have been received only at such time as the selling Investor speaks directly with the current Chief Financial Officer. In addition, an oral Notice of Sale shall only be deemed effective if it is followed by a written Notice of Sale received by the Company by personal delivery or facsimile within twenty-four (24) hours after giving the oral Notice of Sale. The Investor shall not be required to sell under the Registration Statement and may effect any other sales transactions which would not result in a violation of law by the Company; provided, however, that the Company may require an opinion of counsel reasonably acceptable to the Company regarding any such sale.
(d) Subject to paragraph (de) 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; or (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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) after a Notice of Sale pursuant to Section 7.2(c), of any event or circumstance which, upon the advice of its counsel, 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 deliver shall, before the expiration of the one business day period of the notice, cause to be received by the Investor a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares not already sold pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(de) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two three occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d7.2(e) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in potential liability to the Company.
(ef) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(fg) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit Aherein, so that the Shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 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 Shares being sold thereunder, such Prospectus 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectusprospectus, 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 Prospectusprospectus, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’s 's receipt of copies of a supplemented or amended Prospectus prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus 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 Prospectusprospectus. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve twelve-month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectusesprospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, and its stock certificate, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Stock Purchase Agreement (Esperion Therapeutics Inc/Mi)
Transfer of Shares After Registration; Suspension. (a) a. The Investor agrees that it will not effect any disposition of the Shares or its right to purchase obtain the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and in all cases in accordance with the procedures reasonably requested by the Company to ensure compliance with the securities laws, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distributionInvestor.
(b) b. Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 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 Shares being sold thereunder, such Prospectus 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 Investor copies (which may be provided electronically) of any documents filed pursuant to Section 7.2(b)(i12(b)(i) as the Investor may reasonably request; , and (iii) inform each the Investor that the Company has complied with its obligations in Section 7.2(b)(i12(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement which that has not yet been declared effective, the Company will notify the Investor to that effect, will use its best reasonable commercial efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) c. Subject to paragraph (d) 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 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; , or (iv) of any event or circumstance which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectusprospectus, 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 Prospectusprospectus, 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 deliver (which delivery may occur electronically) a certificate in writing to the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies (which may be provided electronically) of a supplemented or amended Prospectus prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus 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 Prospectusprospectus. In the event of any Suspension, the Company will use its best reasonable commercial efforts to cause the use of the Prospectus prospectus so suspended to be resumed as soon as reasonably practicable within 20 twenty (20) business days after the delivery of a Suspension Notice to the Investor.
. In addition to and without limiting any other remedies (dincluding, without limitation, at law or at equity) Notwithstanding available to the foregoing paragraphs of this Section 7.2Investor, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, entitled to specific performance in the good faith judgment event that the Company fails to comply with the provisions of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the CompanySection 12(c).
(e) d. Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus prospectus to the transferee of such Shares. The Company shall provide Shares and otherwise complies with applicable federal and state securities laws in connection with such number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectusessale.
(f) e. In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also shall deliver to the Company’s transfer agent, with a copy agent such documentation as reasonably required to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferredeffect such transfer.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except (i) pursuant to a valid exemption from registration, provided that the Investor provides the Company with an opinion of the Investor’s counsel, which counsel and opinion shall both be satisfactory to the Company, and such other information and documentation as the Company shall reasonably request, or (ii) as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best commercially reasonable efforts to secure the effectiveness of any such post-effective amendment as promptly as possible practicable and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefore, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In the event of a sale of Shares by the Investor pursuant to the Registration StatementInvestor, the Investor must also deliver shall (i) cause the delivery to and receipt of the original stock certificate and irrevocable stock power with original medallion signature (in the form of Exhibit A) to the transfer agent with copies to the Company and Lxxxxx & Wxxxxxx, counsel to the Company’s ; (ii) cause the delivery to and receipt of the original signed instruction letter with original medallion signature to the transfer agent, with a copy copies to the CompanyCompany and Lxxxxx & Wxxxxxx, a Certificate requesting that the shares be transferred, providing the name, address and taxpayer’s identification number of Subsequent Sale substantially the transferee, providing instructions for how the shares should be delivered to the transferee, and stating that the shares have been sold pursuant to the Prospectus contained in the Registration Statement and in the manner described under the caption “Plan of Distribution” in the Prospectus and that such sale complies with all applicable securities laws, including, without limitation, the prospectus delivery requirements of the Securities Act; (iii) cause the delivery to and receipt of the original broker’s letter to the transfer agent (in the form of Exhibit B), with copies to the Company and Lxxxxx & Wxxxxxx, confirming compliance with the Securities Act prospectus delivery requirements; and (iv) cause the delivery to and receipt by the transfer agent, with copies to the Company and Lxxxxx & Wxxxxxx, of a Secretary’s certificate of the Investor with original medallion signature, dated within 6 months and signed by an officer other than the signatory of the stock power and instruction letter, certifying the accuracy, completeness and validity of attached hereto as Exhibit A, so copies of corporate resolutions of the Investor stating that such signatory has the Shares may be properly transferredauthority to sign the stock power.
Appears in 1 contract
Samples: Stock Purchase Agreement (Tivo Inc)
Transfer of Shares After Registration; Suspension. (aA) The Investor Seller agrees that it will not effect any disposition or other transfer of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in other than transactions exempt from the registration requirements of the Securities Act and transactions pursuant to the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawStatement, and that it will promptly notify the Company Arcadia of any material changes in the information set forth in the Registration Statement regarding the Investor Seller or its plan of distribution.
(bB) Except in the event that paragraph (c) below applies, the Company shall Arcadia shall: (i) if deemed necessary by the CompanyArcadia, 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 Shares 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; and (ii) provide the Investor copies of Seller with electronic access to any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request; and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective2(b)(i).
(cC) Subject to paragraph (d) below, in the event 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 the 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 the Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company Arcadia of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, which necessitates the making of any material 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 omit 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 omit 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 Arcadia shall promptly deliver a certificate in writing or electronically to the Investor Seller (the “Suspension Notice”"SUSPENSION NOTICE") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Seller will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”"SUSPENSION") until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it Seller is advised in writing by the Company Arcadia that the current Prospectus may be used, and has received copies of electronic access to any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, the Company Arcadia will use its best commercially reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the InvestorSeller. In the event that Arcadia fails to comply with the provisions of this Section 2(c), the sole remedy, at law or equity, available to the Seller shall be an action for specific performance. The Seller covenants that from the date hereof it will maintain in confidence the receipt and content of any Suspension Notice provided in accordance with this paragraph (c) in accordance with and subject to Section 4.6 of Annex I to the Securities Purchase Agreement.
(dD) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that If a Suspension is not then in effect, the Investor Seller may sell Shares under the Registration Statement, provided that it arranges for complies with any applicable prospectus delivery of a current Prospectus to the transferee of such Shares. The Company shall provide such number of current Prospectuses to the Investor as the Investor may reasonably requestrequirements, applicable law, and shall supply copies to any other parties reasonably requiring such Prospectusesthe terms and conditions of this agreement.
(fE) In the event of a sale of Shares by the Investor pursuant to the Registration StatementSeller, unless such requirement is waived by Arcadia in writing, the Investor Seller, at the Seller's sole cost, must also deliver to the Company’s Arcadia's transfer agent, with a copy to Arcadia, such documentation reasonably requested by the Companytransfer agent including, without limitation, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
(F) Arcadia agrees that it shall, immediately prior to the Registration Statement being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that at any time the Registration Statement is effective, the transfer agent shall issue, in connection with the sale of the Shares, certificates representing such Shares without restrictive legend, provided the Shares are to be sold pursuant to the Prospectus contained in the Registration Statement and the transfer agent receives all of the documentation required by the transfer agent including the Certificate of Subsequent Sale in the form attached hereto as Exhibit "A." Arcadia shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Shares from the Seller at Seller's expense and upon request of Seller, if (a) the sale of such Shares is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act) and the Seller has delivered a Certificate of Subsequent Sale to the Transfer Agent; (b) the holder has provided Arcadia with an opinion of counsel reasonably acceptable to Arcadia, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Shares may be made without registration under the Securities Act; or (c) such Shares are sold in compliance with Rule 144 under the Securities Act. In addition, Arcadia shall, at the Seller's expense and upon request of the Seller, remove the restrictive legend from any Shares held by the Seller following the expiration of the holding period required by Rule 144(k) under the Securities Act (or any successor rule).
Appears in 1 contract
Samples: Registration Rights Agreement (Arcadia Resources, Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares or its right to purchase the Shares 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 the Registration Statement referred to in Section 7.1 6.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(b)(i); and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Company shall use its best efforts to ensure that the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions one occasion of not more than 30 days each in any twelve 12-month period. If a Suspension is in effect for more than 60 days (consecutive or non-consecutive) in any 12-month period, unlessthe Company shall, on the 61st day of the Suspension and each 30th day thereafter, issue to the Investor .01 shares of Common Stock (which shall be deemed to be Shares) for every Share purchased in the Offering until the Suspension is lifted; provided, however, that the Company shall issue such additional shares only to the extent it determines, in its sole discretion, it is permitted to issue shares without seeking shareholder approval, including, without limitation, pursuant to the good faith judgment Nasdaq Marketplace Rules, and the Company shall pay the Investors the cash value of the Company’s Board of Directorsremaining shares it is not permitted to issue, upon which cash value shall be based on the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation closing bid price of the Securities Act or shares on the Exchange Act and result in liability to date the Company.issuance is required hereunder;
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to Investor, unless such requirement is waived by the Registration StatementCompany in writing, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AC, so that the Shares shares may be properly transferred.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nastech Pharmaceutical Co Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares Securities or its right to purchase the Shares Securities that would constitute a sale within the meaning of the Securities Act except other than transactions exempt from the registration requirements of the Securities Act, as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request2(b)(i); and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i2(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 Investor to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares Securities pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Investors are 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. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 2(c). The Investor covenants that from the date hereof it will maintain in confidence the receipt and content of any Suspension Notice provided in accordance with this paragraph (c) in accordance with and subject to Section 4.6 of Annex I to the Securities Purchase Agreement.
(d) Notwithstanding the foregoing paragraphs of this Section 7.22, the Investor Company shall use its commercially reasonable efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on exceed sixty (60) days individually and (ii) no more than two occasions of not more than 30 days each in (2) Suspensions shall occur during any twelve month periodperiod (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”). In the event that there occurs a Suspension (or part thereof) that does not constitute a Qualifying Suspension, unlessthe Company shall pay to the Investor, on the sixtieth (60th) day following the first day of such Suspension (or the first day of such part), and on each sixtieth (60th) day thereafter, an amount equal to 2.0% of the purchase price paid for the Shares purchased by the Investor and not previously sold by the Investor (prorated in each such case for partial thirty day periods); provided, however, that in no event shall the payments made pursuant to this paragraph (d), if any, exceed in the good faith judgment aggregate 15.0% of such purchase price. This liquidated damage shall not apply after the Company is no longer obligated to maintain the effectiveness of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the CompanyStatement.
(e) Provided that If a Suspension is not then in effect, the Investor may sell Shares Securities under the Registration Statement, provided that it arranges for complies with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares Securities by the Investor pursuant to Investor, unless such requirement is waived by the Registration StatementCompany in writing, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares Securities may be properly transferred.
(g) The Company agrees that it shall, immediately prior to the Registration Statement being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that at any time the Registration Statement is effective, the transfer agent shall issue, in connection with the sale of the Securities, certificates representing such Securities without restrictive legend, provided the Securities are to be sold pursuant to the Prospectus contained in the Registration Statement and the transfer agent receives a Certificate of Subsequent Sale in the form attached hereto as Exhibit A. Upon receipt of such opinion, the Company shall cause the transfer agent to confirm, for the benefit of the Investor, that no further opinion of counsel is required at the time of transfer in order to issue such Securities without restrictive legend. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Securities from the Investor, if (a) the sale of such Securities is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act) and the Investor has delivered a Certificate of Subsequent Sale to the Transfer Agent; (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Securities may be made without registration under the Securities Act; or (c) such Securities are sold in compliance with Rule 144 under the Securities Act. In addition, the Company shall, at the request of the Investor, remove the restrictive legend from any Securities held by the Investor following the expiration of the holding period required by Rule 144(k) under the Securities Act (or any successor rule).
Appears in 1 contract
Samples: Registration Rights Agreement (Perfectenergy International LTD)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares 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 the Registration Statement referred to in Section 7.1 6.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(b)(i); and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 the Investor (the “"Suspension Notice”") to the effect of the foregoing (but not including any information which constitutes material non-public information other than notice that one of the foregoing events has occurred) and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Company shall use its best efforts to ensure that the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period. If a Suspension is in effect for more than 60 days (consecutive or non-consecutive) in any twelve-month period, unlessthe Company shall, on the 61st day of the Suspension and each 30th day thereafter, make payments to the Investor as partial compensation for such delay until the Suspension is lifted. The amount of the payments made to the Investor will be equal to 1% of the purchase price paid for the Shares purchased by the Investor and not previously sold by the Investor for each 30 days that sales cannot be made under the effective Registration Statement (but in no event to exceed 8% in the good faith judgment aggregate) beyond the period allowed by the previous sentence. The number of Shares not previously sold as specified in the previous sentence shall be determined as of the Company’s Board end of Directorsthe respective 30 day period. These payments will be prorated on a daily basis during the 30 day period and will be paid to the Investor by check within five business days following the end of each month as to which payment is due hereunder, upon assuming that the written opinion of counsel of counsel, Investor delivered to the sale Company at least two business days prior thereto information with respect to the number of Shares under not previously sold by the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the CompanyInvestor (together with reasonable supporting documentation).
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, unless such requirement is waived by the Company in writing, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AC, so that the Shares shares may be properly transferred.
(g) The Company agrees that it shall, immediately prior to the Registration Statement being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that at any time the Registration Statement is effective, the transfer agent shall issue, in connection with the sale of the Shares, certificates representing such Shares without restrictive legend, provided the Shares are to be sold pursuant to the prospectus contained in the Registration Statement and the transfer agent receives a Certificate of Subsequent Sale in the form attached hereto as Exhibit C. Upon receipt of such opinion, the Company shall cause the transfer agent to confirm, for the benefit of the Investor, that no further opinion of counsel is required at the time of transfer in order to issue such Shares without restrictive legend. In the event of any sale of the Shares in accordance with this Agreement, the restrictive legend shall be removed and the Company shall issue a certificate without such legend to the purchaser of any such Shares, if (a) the sale of such Shares is registered under the Registration Statement (including registration pursuant to Rule 416 under the Securities Act); (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Shares may be made without registration under the Securities Act; or (c) such Shares are sold in compliance with Rule 144 under the Securities Act.
Appears in 1 contract
Samples: Stock Purchase Agreement (Endocardial Solutions Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 45 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in potential liability to the Company.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration StatementInvestor, the Investor must shall also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AC, so that the Shares shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 6.2(b) below applies, the Company shall during the Effectiveness Period: (i) if deemed necessary or advisable by the Company, 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 Shares 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 Investor Purchasers copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(a)(i); and (iii) upon request, inform each Investor Purchaser who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor Purchaser to that effect, will use its reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) belowSection 6.1(c), in the event 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 the 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 the 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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor Purchasers (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchasers will refrain from selling any Shares Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Purchasers are advised in writing by the Company that the current Prospectus may be used, and has have received copies from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorPurchasers. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Purchaser, the Company and the Purchasers shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 6.2(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its reasonable best efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of exceed 30 days individually, (ii) Suspensions on covering no more than two occasions of not more than 30 days each 45 days, in the aggregate, shall occur during any twelve month periodperiod and (iii) each Suspension shall be separated by a period of at least 30 days from a prior Suspension (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”).
(d) During the Effectiveness Period, unless, the Company shall cause certificates evidencing the Registrable Securities not to contain any legend (including the legend set forth in the good faith judgment of the Company’s Board of Directors, Section 3.3(b)): (i) upon the written opinion effectiveness of counsel of counsela registration statement (including the Registration Statement) covering such Registrable Securities, the or (ii) following a sale of Shares such Registrable Securities pursuant to Rule 144, or (iii) while such Registrable Securities are eligible for sale under the Registration Statement in reliance on this paragraph 7.2(dRule 144, or (iv) would be reasonably likely to cause a violation if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the SEC). Following such time as restrictive legends are not required to be placed on certificates representing Shares or Warrant Shares, the Company will, no later than three Trading Days following the delivery by a Purchaser to the Company or the Exchange Act Company’s transfer agent of a certificate representing Registrable Securities containing a restrictive legend, deliver or cause to be delivered to such Purchaser a certificate representing such Registrable Securities that is free from all restrictive and result in liability other legends. The Company shall, immediately following the Registration Statement being declared effective, cause its counsel to issue a legal opinion to the Company’s transfer agent to effect the removal of the restrictive legend contemplated by this Agreement. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Agreement. Certificates for Registrable Securities subject to legend removal hereunder shall be transmitted by the transfer agent of the Company to the Purchasers by crediting the account of the Purchaser’s prime broker with the Depository Trust Company system.
(e) Provided that a Suspension is not then in effect, If the Investor may sell Shares under the Registration Statement, provided that it arranges Company shall fail for delivery of a current Prospectus any reason or for no reason to issue to the transferee Purchaser within two (2) Trading Days of the Legend Removal Request Date a certificate for the number of shares of Common Stock to which the Purchaser is entitled and register such Shares. The Company shall provide shares of Common Stock on the Company’s share register or to credit the Purchaser’s balance account with DTC for such number of current Prospectuses shares of Common Stock to which the Investor as the Investor may reasonably requestPurchaser is entitled, and shall supply copies if on or after such Trading Day the Purchaser purchases, or another Person purchases on the Purchaser’s behalf or for the Purchaser’s account (in an open market transaction or otherwise) shares of Common Stock to any other parties reasonably requiring such Prospectuses.
(f) In the event deliver in satisfaction of a sale of Shares by the Investor pursuant Purchaser of shares of Common Stock (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Purchaser’s written request pay in cash to the Registration StatementPurchaser (for costs incurred either directly by such Purchaser or on behalf of a third party) the amount by which the total purchase price paid for Common Stock as a result of the Buy-In (including brokerage commissions, if any) exceeds the Investor must also deliver proceeds received by such Purchaser as a result of the sale to which such Buy-In relates. The Purchaser shall provide the Company written notice indicating the amounts payable to the Company’s transfer agent, with a copy to Purchaser in respect of the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferredBuy-In.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp)
Transfer of Shares After Registration; Suspension. (a) The Investor Purchaser agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 3.1 and as described below or as otherwise permitted by lawthe Securities Act, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor Purchaser or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (iA) if deemed necessary by the Company, 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 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 Shares being sold thereunder, such Prospectus 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; (iiB) provide the Investor Purchaser copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request3.4(b)(ii)(A); and (iiiC) inform each Investor the Purchaser that the Company has complied with its obligations in Section 7.2(b)(i3.4(b)(ii)(A) (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 Investor Purchaser to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i3.4(b)(ii)(A) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event event: (iA) 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 prospectus or for additional information; (iiB) 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; (iiiC) 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (ivD) of any event or circumstance which, upon the advice of its counsel, which necessitates the making of any changes in the Registration Statement or Prospectusprospectus, 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 Prospectusprospectus, 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 misleadingmisleading or (E) the occurrence or existence of any pending corporate development that, in the reasonable discretion of the Company, makes it appropriate to suspend the effectiveness of the Registration Statement and the related prospectus; then the Company shall immediately deliver a certificate in writing to the Investor Purchaser (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchaser will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the InvestorPurchaser’s receipt of copies of a supplemented or amended Prospectus prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus 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 Prospectusprospectus. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus prospectus so suspended to be resumed as soon as reasonably practicable within 20 business 30 calendar days after the delivery of a Suspension Notice to the InvestorPurchaser.
(d) Notwithstanding the foregoing paragraphs of this Section 7.23.4, the Investor Purchaser shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two four occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that If a Suspension is not then in effect, the Investor Purchaser may sell Shares under the Registration Statement, provided that it the Purchaser arranges for delivery of a current Prospectus prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall agrees to provide such an adequate number of current Prospectuses prospectuses to the Investor as the Investor may reasonably request, Purchaser and shall to supply copies to any other parties reasonably requiring such Prospectusesprospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-post- effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate notice in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investorpracticable.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such SharesShares (or arranges for delivery of such to the transferee's broker). The Upon receipt of a written request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In the event of a sale of Shares by the Investor pursuant to the Registration StatementInvestor, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AB hereto, so that the Shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor Purchaser agrees that it will not effect sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any disposition of right with respect to the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 4.3 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor Purchaser or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, prepare and file from time to time with the SEC Commission 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 Shares 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 the light of the circumstances under which they were made, not misleading; (ii) provide the Investor Purchaser copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request4.6(b)(i); and (iii) inform each Investor the Purchaser that the Company has complied with its obligations in Section 7.2(b)(i4.6(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 Investor Purchaser to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i4.6(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 immediately deliver a certificate in writing to the Investor Purchaser (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchaser will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’s 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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 but no later than twenty (20) ) business days after the delivery of a Suspension Notice to the InvestorPurchaser. 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 4.6(c). In the event that the Company delivers a Suspension Notice and has not yet delivered a Truncate Notice, such Suspension Notice shall also be deemed be a Truncate Notice pursuant to Section 6.1(l) hereof.
(d) Notwithstanding the foregoing paragraphs of this Section 7.24.6, the Investor Purchaser shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions occasions, each of not more than 30 days each twenty (20) days, in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d4.6(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in potential liability to the Company.
(e) Provided that a Suspension is not then in effect, effect the Investor Purchaser may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefore, the Company shall has agreed to provide such a reasonable number of current Prospectuses to the Investor as the Investor may reasonably request, Purchaser and shall to supply a reasonable number of copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Pacificare Health Systems Inc /De/)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible reasonably practicable and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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; or (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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 shall, deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on for more than two occasions of not more than 30 60 days each in the aggregate during any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the CompanyAct.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Each Eligible Investor agrees that it will not effect any disposition Disposition of the Securities or Warrant Shares or its right to purchase the Securities or Warrant Shares 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 the Registration Statement referred to in Section 7.1 6.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Eligible Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(b)(i); and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Eligible Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Eligible Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Eligible Investors are 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. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the Eligible Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its commercially reasonable efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on exceed thirty (30) days individually, (ii) no more than two occasions of not more than 30 days each in (2) Suspensions shall occur during any twelve month periodperiod and (iii) each Suspension shall be separated by a period of at least thirty (30) days from a prior Suspension (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”). If a Suspension occurs and such Suspension is not a Qualifying Suspension (a “Non-Qualifying Suspension”), unlessthe Company shall, on the 10th Business Day immediately following the effectiveness of the Non-Qualifying Suspension and each 30th day thereafter, make a payment to the Eligible Investor as partial compensation for such Non-Qualifying Suspension equal to 1.5% of the purchase price paid for the Registrable Securities purchased by the Investor and not previously sold by the Investor until the Non-Qualifying Suspension has ended; provided, however, that in no event shall the payments made pursuant to this paragraph (d), if any, exceed in the good faith judgment aggregate 5% of the Company’s Board of Directorspurchase price paid by the Eligible Investor for the Registrable Securities; provided, upon the written opinion of counsel of counselfurther, the sale of Shares that in all events such penalties under the Registration Statement in reliance on this paragraph 7.2(d(d) would be reasonably likely shall cease to cause a violation accrue with respect to any Eligible Investor on the date on which such Eligible Investor may sell Registrable Securities pursuant to Rule 144 without limitations on volume or manner of the Securities Act or the Exchange Act and result in liability to the Companysales.
(e) Provided that If a Suspension is not then in effect, the Eligible Investor may sell Shares Registrable Securities under the Registration Statement, provided that it arranges for complies with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Eligible Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares Registrable Securities by the Investor pursuant to Eligible Investor, unless such requirement is waived by the Registration StatementCompany in writing, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AC, so that the Shares securities may be properly transferred.
(g) The Company agrees that it shall, immediately prior to the Registration Statement being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that at any time the Registration Statement is effective, the transfer agent shall issue, in connection with the sale of the Registrable Securities, certificates representing such securities without restrictive legend, provided the Registrable Securities are to be sold pursuant to the prospectus contained in the Registration Statement and the transfer agent receives a Certificate of Subsequent Sale in the form attached hereto as Exhibit C. Upon receipt of such opinion, the Company shall cause the transfer agent to confirm, for the benefit of the Eligible Investor, that no further opinion of counsel is required at the time of transfer in order to issue such Registrable Securities without restrictive legend. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Securities from the Investor, if (a) the sale of such Registrable Securities is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act) and the Eligible Investor has delivered a Certificate of Subsequent Sale to the Transfer Agent; (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Securities may be made without registration under the Securities Act; or (c) such Securities are sold in compliance with Rule 144 under the Securities Act. In addition, the Company shall, at the request of the Investor, remove the restrictive legend from any Shares held by the Investor following the expiration of the requirement for such restrictive legend under Rule 144 under the Securities Act (or any successor rule). Each Investor, severally and not jointly with the other Investors, agrees that such Investor will sell any Securities pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Securities are Registrable Securities held by an Eligible Investor that are sold pursuant to the Registration Statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing Securities as set forth in this Section 6.2 is predicated upon the Company’s reliance upon this understanding.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 3.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 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 Shares being sold thereunder, such Prospectus 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 Investor copies of any documents filed pursuant to this Section 7.2(b)(i) as the Investor may reasonably request3.2(b)(i); and (iii) inform each the Investor that the Company has complied with its obligations in this Section 7.2(b)(i3.2(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 Investor to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to this Section 7.2(b)(i3.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectusprospectus, 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 Prospectusprospectus, 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 the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’s 's receipt of copies of a supplemented or amended Prospectus prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus 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 Prospectusprospectus. In the event of any Suspension, the Company will use its reasonable best efforts to cause the use of the Prospectus prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice practicable. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 3.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.23.2, the Investor shall not be prohibited from selling the Shares under the Registration Statement as a result of Suspensions on more than two occasions one occasion of not more than 30 thirty days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel advice of counsel, the sale of the Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell the Shares under the Registration Statement; provided, provided however, that it arranges for delivery of a current Prospectus prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectusesprospectuses.
(f) In the event of a sale of the Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, A so that the Shares may be properly transferred. Assuming timely delivery to the Company's transfer agent of one or more stock certificates representing the Shares in proper form for transfer and assuming compliance by the Investor with the terms of this Agreement, the Company's transfer agent will issue and make appropriate delivery of one or more stock certificates in the name of the buyer so as to permit timely compliance by the Investor with applicable settlement requirements.
Appears in 1 contract
Samples: Investor Rights Agreement (Osi Pharmaceuticals Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below 6.1 or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(b)(i); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business 30 days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two three occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d6.2(d) would be is reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in potential liability to the Company.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration StatementInvestor, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AC, so that the Shares shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 8(a) of this Agreement and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall:
(i) if deemed necessary by the Company, prepare and file from time to time with the SEC Commission 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 Shares 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 the light of the circumstances under which they were made, not misleading; and
(ii) as soon as practicable provide to the Investor copies of any documents filed pursuant to the preceding Section 7.2(b)(i) as the Investor may reasonably request; and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective10(b)(i).
(c) Subject to paragraph (d) below, in the event 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 Effectiveness Period for amendments or supplements to a the 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 qualification) of any of the Shares for sale in any jurisdiction in which they have been qualified for sale or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’s receipt of Investor receives from the Company 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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor, and the Company shall as soon as reasonably practicable provide the Investor with copies of any supplemented or amended Prospectus or, as the case may be, advise the Investor in writing that the current prospectus may be used, and deliver copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus.
(d) Notwithstanding the foregoing paragraphs of this Section 7.210, the Company shall use its best efforts to ensure that the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 45 days each in the aggregate for all such occasions in any twelve 12-month period. If a Suspension is in effect for more than 45 days (consecutive or non-consecutive) in any 12-month period, unlessthen for each day in excess of 45 days in that 12-month period on which a Suspension is in effect, in but not including any day on which a Suspension is lifted, the good faith judgment Company shall pay the Investor, as liquidated damages and not as a penalty, an amount equal to 0.0357% of the Company’s Board of DirectorsPurchase Price for each such day, upon and such payment shall be made no later than the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation first business day of the Securities Act or calendar month next succeeding the Exchange Act and result month in liability to the Companywhich such day occurs.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Company shall provide such number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to Investor, unless such requirement is waived by the Registration StatementCompany in writing, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AC, so that the Shares shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition or other transfer of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except other than transactions exempt from the registration requirements of the Securities Act, as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor with either copies of any documents filed pursuant to Section 7.2(b)(i2(b)(i) as the Investor may reasonably requestor access to such documents electronically; and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, which necessitates the making of any material 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 omit 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 omit 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 or electronically to the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Investors are 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. Notwithstanding the foregoing, the right of the Company to implement a Suspension shall be limited to two such Suspensions in any twelve-month period, each of which may not exceed 45 days. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 2(c). The Investor covenants that from the date hereof it will maintain in confidence the receipt and content of any Suspension Notice provided in accordance with this paragraph (c) in accordance with and subject to Section 4.6 of Annex I to the Securities Purchase Agreement.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that If a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for complies with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In The Company agrees that it shall, upon the event Registration Statement being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that the transfer agent shall issue certificates representing such Shares without restrictive legend, provided that the Investor undertakes that the Shares will be sold only pursuant to the Prospectus contained in an effective Registration Statement. Upon receipt of such opinion, the Company shall cause the transfer agent to confirm, for the benefit of the Investor, that no further opinion of counsel is required at the time of transfer in order to issue such Shares without restrictive legend. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Shares from the Investor at Investor’s expense and upon request of Investor, if (a) the sale of such Shares is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act); (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Shares may be made without registration under the Securities Act; or (c) such Shares are sold in compliance with Rule 144 under the Securities Act. In addition, the Company shall, at the Investors expense and upon request of the Investor, remove the restrictive legend from any Shares held by the Investor pursuant to following the Registration Statement, expiration of the Investor must also deliver to holding period required by Rule 144(k) under the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferredSecurities Act (or any successor rule).
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request; and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may --------- be properly transferred.
Appears in 1 contract
Samples: Purchase Agreement (Lifecell Corp)
Transfer of Shares After Registration; Suspension. (a) The Each Investor agrees that it will not effect any disposition of the Shares Shares, or its right to purchase the Shares Shares, that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 8(a) of this Agreement and as described below below, in accordance with Section 16 of this Agreement or as otherwise permitted by law, and that it will promptly notify the Company of any changes change in any such information until such time as such Investor has sold all of its Shares or until the information set forth in Company is no longer required to keep the Registration Statement regarding effective. Prior to any proposed transfer of any Shares other than pursuant to the Registration Statement, Rule 144 or Rule 904 of Regulation S, the Investor or its plan proposing to make such transfer shall give written notice to the Company of distributionsuch Investor’s intention to effect such transfer, which notice shall set forth the date of such proposed transfer. Such Investor also shall furnish to the Company (i) a written agreement by the proposed transferee that it is taking and holding the same subject to the terms and conditions specified in this Agreement and (ii) a written opinion of such Investor’s counsel, in a form reasonably satisfactory to the Company, to the effect that the proposed transfer may be effected without registration under the Securities Act.
(b) Except in the event that paragraph (c) below applies, the Company shall shall:
(i) if deemed necessary by the Companyit deems necessary, prepare and file from time to time with the SEC a Commission one or more post-effective amendment amendments to the Registration Statement or a supplement supplements 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 Shares 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 the light of the circumstances under which they were made, not misleading; and
(ii) as soon as practicable provide the to each Investor copies of any documents filed pursuant to the preceding Section 7.2(b)(i) as the Investor may reasonably request; and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective9(b)(i).
(c) Subject to paragraph (d) below, in the event of:
(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 Effectiveness Period for amendments or supplements to a the 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 the 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 qualification) of any of the Shares for sale in any jurisdiction in which they have been qualified for sale or the initiation or threatening of any proceeding for such purpose; or or
(iv) of any event or circumstance which, upon the advice of its counsel, 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, Prospectus 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 the each Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the such Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until such Investor receives from the Investor’s receipt of Company 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. In the event of any Suspension, the Company will use its commercially reasonable best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor, and the Company shall as soon as practicable provide each Investor with copies of any supplemented or amended Prospectus or, as the case may be, advise each Investor in writing that the current Prospectus may be used.
(d) Notwithstanding the foregoing paragraphs of this Section 7.29, the Company shall use its commercially reasonable best efforts to ensure that each Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 60 days each in the aggregate in any twelve 12-month period.
(e) In addition, unlesssubject to compliance with applicable law, in the good faith judgment of Company shall use its commercially reasonable best efforts to ensure that the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale transfer agent expeditiously effects all sales of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under have from time to time, including the Registration Statement, provided that it arranges for delivery prompt removal of a current Prospectus to the transferee of such Shares. The Company shall provide such number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectusesrestrictive legends.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request; and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).Registration
(c) Subject to paragraph (d) 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; or (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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 shall, deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d7.2(e) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the CompanyCompany directly or under Section 7.3.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such ProspectusesProspectuses in order for the Investor to effect sales thereunder.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Stock Purchase Agreement (Axys Pharmecueticals Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition sale, assignment or other transfer (a "Disposition") of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the CompanyInvestor, 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 (A) 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 Shares 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 misleadingmisleading or (B) to revise or amend the plan of distribution of the Shares as requested by Investor; (ii) provide the Investor copies of any ***Confidential treatment has been requested pursuant to Rule 406 of the Securities Act of 1933, as amended. Omitted portions have been filed separately with the Securities and Exchange Commission. documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business practicable, and in any event not more than *** (***) days after the delivery of a Suspension Notice to the Investor; provided, however, that the Company shall not be required to amend a Registration Statement or supplement a Prospectus for a period of up to *** (***) days after delivery of a Suspension Notice to the Investor if the Company's Board of Directors determines in good faith that do so would be seriously detrimental to *** involving the Company, it being understood that the period for which the Company is obligated to keep the Registration Statement effective under Section 7.1(c) shall be extended for a number of days equal to the number of days the Company delays amendment or supplement pursuant to this provision; provided that the Company shall be able to delay amendment or supplement pursuant to this provision only once. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to ***.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current ***Confidential treatment has been requested pursuant to Rule 406 of the Securities Act of 1933, as amended. Omitted portions have been filed separately with the Securities and Exchange Commission. Prospectus to the transferee of such SharesShares or sells the Shares pursuant to an exemption under the Securities Act. The Upon receipt of a request therefor, the Company shall agrees to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Stock Purchase Agreement (Bioject Medical Technologies Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cb) below applies, the Company shall shall: (i) if deemed necessary or advisable by the Company, 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 Shares 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 Investor Purchasers copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(a)(i); and (iii) upon request, inform each Investor Purchaser who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor Purchaser to that effect, will use its commercially reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (dc) below, in the event 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 the 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 the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor Purchasers (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchasers will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Purchasers are advised in writing by the Company that the current Prospectus may be used, and has have received copies from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorPurchasers. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Purchaser, the Company and the Purchasers shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 6.2(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its commercially reasonable best efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of exceed 45 days individually, (ii) Suspensions on covering no more than two occasions of not more than 30 days each 90 days, in the aggregate, shall occur during any twelve month periodperiod and (iii) each Suspension shall be separated by a period of at least 30 days from a prior Suspension (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”). In the event that there occurs a Suspension (or part thereof) that does not constitute a Qualifying Suspension, unlessthe Company shall pay to the Purchaser, in on the good faith judgment 30th day following the first day of such Suspension (or the first day of such part), and on each 30th day thereafter, an amount equal to 1% of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of Purchase Price paid for the Securities Act or purchased by the Exchange Act Purchaser and result in liability not previously sold by the Purchaser such payments to be prorated on a daily basis during each 30 day period and will be paid to the CompanyPurchaser by wire transfer or check within five business days after the end of each 30 day period following.
(ed) Provided that If a Suspension is not then in effect, the Investor Purchasers may sell Shares under the Registration Statement, provided that it arranges for they comply with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefore, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, a Purchaser and shall supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In The Company agrees that it shall, immediately prior to the event Registration Statement being declared effective, deliver to its transfer agent an opinion letter of a counsel, opining that at any time the Registration Statement is effective, the transfer agent may issue, in connection with the sale of the Shares, certificates representing such Shares by without restrictive legend, provided the Investor Shares are to be sold pursuant to the prospectus contained in the Registration Statement. Upon receipt of such opinion, the Investor must also deliver Company shall cause the transfer agent to confirm, for the benefit of the Purchasers, that no further opinion of counsel is required at the time of transfer in order to issue such Shares without restrictive legend. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Shares from the Purchasers, if no Suspension is in effect at the time of sale, and (a) the sale of such Shares is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act); (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the Company’s effect that a public sale or transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the such Shares may be properly transferredmade without registration under the Securities Act; or (c) such Shares are sold in compliance with Rule 144 under the Securities Act. In addition, the Company shall remove the restrictive legend from any Shares held by the Purchasers following the expiration of the holding period required by Rule 144(k) under the Securities Act (or any successor rule).
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Pw Eagle Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares or its right to purchase the Shares 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 the Registration Statement referred to in Section 7.1 6.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(b)(i); and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 the Investor (the “Suspension Notice”"SUSPENSION NOTICE") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”"SUSPENSION") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business 30 days after the delivery of a Suspension Notice Notice, to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Company shall use its best efforts to ensure that the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions one occasion of not more than 30 days each in any twelve month period. If a Suspension is in effect for more than 30 days (consecutive or non-consecutive) in any twelve-month period, unlessthe Company shall, on the 31st day of the Suspension and each 30th day thereafter, issue to the Investor .01 additional shares of Common Stock (which shall be deemed to be Shares), for every Share purchased in the good faith judgment of Offering until the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the CompanySuspension is lifted.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to Investor, unless such requirement is waived by the Registration StatementCompany in writing, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AC, so that the Shares shares may be properly transferred.
Appears in 1 contract
Samples: Stock Purchase Agreement (Act Teleconferencing Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor Each Purchaser agrees that it will not effect any disposition of the Shares or its right to purchase the Converted Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 8.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company Issuer in writing of any changes in the information set forth in the Registration Statement regarding the Investor Purchaser or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company Issuer shall (i) if deemed necessary by the CompanyIssuer, 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 therein, in light of the circumstances under which they were made, not misleading, and so that, as thereafter delivered to purchasers of the Converted Shares 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 Investor Purchasers copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request; 8.2(b)(i), and (iii) inform each Investor Purchaser that the Company Issuer has complied with its obligations in Section 7.2(b)(i8.2(b)(i) (or that, if the Company Issuer has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company Issuer will notify the Investor Purchasers to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i8.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in 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 Issuer of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Converted Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 Issuer shall promptly deliver a certificate in writing to the Investor Purchasers (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchasers will refrain from selling any Converted Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’s Purchasers' receipt of copies of a supplemented or amended Prospectus prepared and filed by the CompanyIssuer, or until it is the Purchasers are advised in writing by the Company Issuer that the current Prospectus may be used, and has have received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, the Company Issuer will use its best commercially reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon promptly as reasonably practicable within 20 business days possible after the delivery of a Suspension Notice to the InvestorPurchasers.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor Purchasers may sell Converted Shares under the Registration StatementStatement in the manner set forth under the caption "Plan of Distribution" in the Prospectus, provided that it each arranges for delivery of a current Prospectus to the transferee of such Converted Shares. The Company shall Upon receipt of a request therefor, the Issuer has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, Purchasers and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Securities Purchase Agreement (Contango Oil & Gas Co)
Transfer of Shares After Registration; Suspension. (a) The Each Investor agrees that it will not effect any disposition of the Shares Registrable Securities or its right to purchase the Shares Registrable Securities that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 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 Shares Registrable Securities being sold thereunder, such Prospectus 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 Investor Investors copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor Investors to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof Investors when the amendment has become effective).
(c) Subject to paragraph (d) 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 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectusrelated 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 Prospectusprospectus, 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 deliver a certificate in writing to the Investor Investors (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Investors will refrain from selling any Shares Registrable Securities pursuant to the Registration Statement (a “"Suspension”") until the Investor’s Investors' receipt of copies of a supplemented or amended Prospectus prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus 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 Prospectusprospectus. In the event of any Suspension, the Company will use its reasonable best efforts to cause the use of the Prospectus prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the InvestorInvestors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investors, the Investors shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor Investors shall not be prohibited from selling Shares Registrable Securities under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel advice of counsel, continuing a Suspension is necessary to prevent the sale disclosure of Shares under the Registration Statement in reliance on this paragraph 7.2(d) material nonpublic information where such disclosure would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability materially injurious to the Company, in which event the Company shall use reasonable best efforts to terminate such Suspension at the earliest date practicable.
(e) Provided that a Suspension is not then in effect, the Investor Investors may sell Shares Registrable Securities under the Registration StatementStatement in the manner set forth under the caption "Plan of Distribution" in the prospectus, provided that it arranges they arrange for delivery of a current Prospectus prospectus to the transferee of such SharesRegistrable Securities. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses prospectuses to the Investor as the Investor may reasonably request, Investors and shall to supply copies to any other parties reasonably requiring such Prospectusesprospectuses.
(f) In the event of a sale of Shares Registrable Securities by the Investor Investors pursuant to the Registration Statement, the Investor Investors must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares Registrable Securities may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares Registrable Securities or its right to purchase the Shares Registrable Securities that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 (including, without limitation, the plan of distribution contained therein) and as described below or as otherwise permitted by law, and that it will promptly notify the Company in writing of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 therein, in light of the circumstances under which they were made, not misleading, and so that, as thereafter delivered to purchasers of the Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 therein, in light of the circumstances under which they were made, 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 deliver a certificate in writing to the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Investor’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. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing other paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares Registrable Securities under the a Registration Statement as a result of Suspensions on more than two occasions of not more than 20 days each or 30 days each in the aggregate in any twelve month period, unless. If, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares Registrable Securities under the a Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company, the Company may extend the 20-day Suspension referenced in the immediately preceding sentence; provided, however, that in no event shall the Company be allowed to suspend a Registration Statement for more than an aggregate of 90 days in any twelve month period, subject to the payment of liquidated damages for any suspension beyond 20-days.
(e) Provided Subject to Section 7.2(d), provided that a Suspension is not then in effect, the Investor may sell Shares Registrable Securities under a Registration Statement in the manner set forth under the Registration Statementcaption “Plan of Distribution” in the Prospectus, provided that it arranges for delivery of a current Prospectus to the transferee of such SharesRegistrable Securities. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares Registrable Securities by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AE, so that the Shares Registrable Securities may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Each Investor agrees that it will not effect any disposition Disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except (i) as contemplated in the Registration Statement referred to in Section 7.1 or pursuant to Rule 144 (or any successor rule) after the Restriction Date and as described below below, (ii) with the written consent of the Company, or (iii) on or prior to November 15, 2002, as otherwise permitted by lawdisclosed in writing to the Company to such other Investors ("Other Investors") as shall be reasonably acceptable to the Company (which Other Investors shall sign a counterpart signature page to this Agreement and shall for all purposes be deemed to be "Investors" hereunder, and Exhibit A shall be appropriately revised), and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the such Investor or its plan of distribution.
(b) .. Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor Investors copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor Investors to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Investors pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) . . Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor Investors (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the each Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the such Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable practicable, and in any event within 20 business 30 calendar days after the delivery of a Suspension Notice to the Investor.
(d) Investors.. Notwithstanding the foregoing paragraphs of this Section 7.2, the no Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two three occasions of not more than 30 calendar days each in any twelve 12-month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel of after consultation with counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in potential liability to the Company.
(e) .. Provided that a Suspension is not then in effect, the each Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall will promptly provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, Investors and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) .. In the event of a sale of Shares by the Investor pursuant to the Registration Statementan Investor, the such Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AB, so that the Shares shares may be properly transferred. .
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares Registrable Securities or its right to purchase the Shares Registrable Securities that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Company shall provide such number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Intrabiotics Pharmaceuticals Inc /De)
Transfer of Shares After Registration; Suspension. (a) The Investor Purchaser agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act Act, except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawin accordance with the Securities Act, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor Purchaser, or the Registration Questionnaire or its plan of distribution. The Company shall not be required to include any Shares held by the Purchaser in the Registration Statement if the Purchaser fails to complete, or update as needed, the Registration Questionnaire or provide the information requested in such Registration Questionnaire in accordance with this Section 7.2.
(b) Except in the event that paragraph (c) below applies, the Company shall use commercially reasonable efforts to, at all times during the Registration Period, promptly (i) if deemed necessary by the Company, 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 Shares 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 Investor Purchaser copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor the Purchaser that the Company has complied with its obligations in Section 7.2(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 Investor Purchaser to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i7.2(b)(iii) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in In the event of (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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 deliver a certificate notice in writing to the Investor Purchaser (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchaser will refrain from selling any Shares Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the InvestorPurchaser’s receipt of copies of a supplemented notification from the Company that the Prospectus supplement or amended Prospectus prepared and amendment has been 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. In the event of any Suspension, the Company will use its commercially reasonable efforts, consistent with the best efforts interests of the Company and its stockholders, to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the InvestorPurchaser.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Company shall provide such number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution. In connection with any transfer of Shares other than pursuant to an effective registration statement, to the Company or to an affiliate of the Investor (who is an accredited investor and executes a customary representation letter), the Company may require the transferor thereof to provide to the Company an opinion of counsel which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares under the Securities Act.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may they reasonably request; and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the good faith judgment of the Company's Board of Directors based on the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon Directors based on the written opinion advice of counsel of its counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor Prospectuses pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferredSecurities Act.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor Purchaser agrees that it will not effect any disposition of the Shares or its right to purchase the Shares Registrable Securities that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company Issuer in writing of any changes in the information set forth in the Registration Statement regarding the Investor Purchaser or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company Issuer shall (i) if deemed necessary by the Company, Issuer: (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 therein, in light of the circumstances under which they were made, not misleading, and so that, as thereafter delivered to purchasers of the Shares 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 Investor Purchaser copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request; ), and (iii) inform each Investor Purchaser that the Company Issuer has complied with its obligations in Section 7.2(b)(i) (or that, if the Company Issuer has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company Issuer will notify the Investor Purchaser to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in In the event of (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 Issuer of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 Issuer shall promptly deliver a certificate notice in writing to the Investor Purchaser (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchaser will refrain from selling any Shares Registrable Securities pursuant to the Registration Statement (a “"Suspension”") until the Investor’s Purchaser's receipt of copies of a supplemented or amended Prospectus prepared and filed by the CompanyIssuer, or until it Purchaser is advised in writing by the Company Issuer 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. In the event of any Suspension, the Company Issuer will use its best commercially reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon promptly as reasonably practicable within 20 business days after the delivery of a Suspension Notice to Purchaser. Notwithstanding the Investorforegoing, the Issuer shall not be required to amend or supplement the Registration Statement, any related Prospectus or any document incorporated therein by reference in the event that, and for a period (a "Black Out Period") not to exceed, for so long as this Agreement is in effect, 60 days consecutively and 120 days in any 12-month period if either (A) any action by the Issuer pursuant to this Section 7.2(c) would violate applicable law or (B) (x) an event occurs and is continuing as a result of which the Registration Statement, any related Prospectus or any document incorporated therein by reference as then amended or supplemented would, in the Issuer's good faith judgment, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (y)
(1) the Issuer determines in good faith that the disclosure of such event at such time would have a material adverse effect on the business, operations or prospects of the Issuer or (2) the disclosure otherwise relates to a material business transaction which has not yet been publicly disclosed in any relevant jurisdiction.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension or a Black Out Period is not then in effect, the Investor Purchaser may sell Shares Registrable Securities under the Registration StatementStatement in the manner set forth under the caption "Plan of Distribution" in the Prospectus, provided that it arranges for delivery of a current Prospectus to the transferee of such SharesRegistrable Securities. The Company shall Upon receipt of a request therefor, the Issuer agrees to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, Purchaser and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In If (i) the event SEC deems the registration of any Registrable Securities to be a sale of Shares primary offering by the Investor pursuant Company or the Purchaser and (ii) the SEC prohibits the use of Rule 415 under the Securities Act (or any similar provision then in force) to sell Registrable Securities on a delayed or continuous basis, then Purchaser shall not be obligated to commit to any such primary offering to allow the Registration Statement, Statement to be declared effective by the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferredCommission.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request; and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable commercial efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable commercial efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel of counselthe Company, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefore, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Stock Purchase Agreement (Vitacube Systems Holdings Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two three occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in potential liability to the Company.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration StatementInvestor, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AC, so that the Shares shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distributiondistribution to the extent such changes would be required to be reflected in such Registration Statement or an amendment thereto.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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; or (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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 shall, deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares not already sold pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two three occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit Ahereto, so that the Shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor C&M agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 4.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company SatCon of any changes in the information set forth in the Registration Statement regarding the Investor C&M or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company SatCon shall (i) if deemed necessary by the CompanySatCon, 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 Shares 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 Investor C&M copies of any documents filed pursuant to Section 7.2(b)(i4.2(b)(i) as the Investor C&M may reasonably request; and (iii) inform each Investor C&M that the Company SatCon has complied with its obligations in Section 7.2(b)(i4.2(b)(i) (or that, if the Company SatCon has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company SatCon will notify the Investor C&M to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor C&M pursuant to Section 7.2(b)(i4.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 the 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 the Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company SatCon of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 SatCon shall deliver a certificate in writing to the Investor C&M (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor C&M will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the InvestorC&M’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the CompanySatCon, or until it is advised in writing by the Company SatCon 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. In the event of any Suspension, the Company SatCon will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to C&M. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to C&M, C&M shall be entitled to specific performance in the Investorevent that SatCon fails to comply with the provisions of this Section 4.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.24.2, the Investor C&M shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on for more than two occasions of not more than 30 60 days each in any twelve month period, unless, in the good faith judgment of the CompanySatCon’s Board of Directors, upon the written opinion of counsel of counselSatCon, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d4.2(d) would be reasonably likely to cause a violation of the Securities Act or the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), and result in liability to the CompanySatCon.
(e) Provided that a Suspension is not then in effect, the Investor C&M may sell Shares under the Registration Statement, provided that it arranges for complies with any prospectus delivery requirement then applicable to it. Upon receipt of a current Prospectus request therefor, SatCon has agreed to the transferee of such Shares. The Company shall provide such an adequate number of current Prospectuses (including documents incorporated by reference therein) to the Investor as the Investor may reasonably request, C&M and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Modification, Termination and Release of Lease (Satcon Technology Corp)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 9.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 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 Shares being sold thereunder, such Prospectus 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 Investor copies of any documents filed pursuant to this Section 7.2(b)(i) as the Investor may reasonably request9.2(b)(i); and (iii) inform each the Investor that the Company has complied with its obligations in this Section 7.2(b)(i9.2(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 Investor to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to this Section 7.2(b)(i9.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Company shall provide such number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Each Investor agrees that it will not effect any disposition Disposition of the Securities or Warrant Shares or its right to purchase the Securities or Warrant Shares that would constitute a sale within the meaning of the Securities Act except other than transactions exempt from the registration requirements of the Securities Act (including, without limitation, a so-called “4(1) and a half” transaction) or as contemplated in the by a Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(b)(i); and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Investors are 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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its best efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on exceed thirty (30) days individually, (ii) no more than two occasions of not more than 30 days each in (2) Suspensions shall occur during any twelve month periodperiod and (iii) each Suspension shall be separated by a period of at least thirty (30) days from a prior Suspension (each Suspension that satisfies the foregoing criteria being referred to herein as a “Qualifying Suspension”). If a Suspension occurs and such Suspension is not a Qualifying Suspension (a “Non-Qualifying Suspension”), unlessthe Company shall, on the 10th Business Day immediately following the effectiveness of the Non-Qualifying Suspension and each 30th day thereafter, make a payment to the Investor as partial compensation for such Non-Qualifying Suspension equal to 1% of the purchase price paid under this Agreement for the Registrable Securities that are held by the Investor until the Non-Qualifying Suspension has ended; provided, however, that in no event shall the payments made pursuant to this paragraph (d), if any, exceed in the good faith judgment aggregate 12% of the Company’s Board of Directorspurchase price paid for the Registrable Securities; provided, upon the written opinion of counsel of counselfurther, the sale of Shares that in all events such penalties under the Registration Statement in reliance on this paragraph 7.2(d(d) would be reasonably likely shall cease to cause a violation accrue with respect to any Investor on the date on which such Investor may sell all Registrable Securities pursuant to Rule 144 without limitations on volume or manner of the Securities Act or the Exchange Act and result in liability to the Companysales.
(e) Provided that If a Suspension is not then in effect, the Investor may sell Shares Registrable Securities under the Registration Statement, provided that it arranges for complies with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In The Company agrees that it shall, immediately prior to the event Registration Statement being declared effective, deliver to its transfer agent an opinion letter of a counsel, opining that at any time the Registration Statement is effective, the transfer agent shall issue, in connection with the sale of Shares the Registrable Securities, certificates representing such securities without restrictive legend, provided the Registrable Securities are to be sold pursuant to the prospectus contained in the Registration Statement and the transfer agent receives a Certificate of Subsequent Sale in the form attached hereto as EXHIBIT C. Upon receipt of such opinion, the Company shall cause the transfer agent to confirm, for the benefit of the Investor, that no further opinion of counsel is required at the time of transfer in order to issue such Registrable Securities without restrictive legend.
(g) If, at any time after the six (6) month period after the Closing Date and prior to the date on which the Investor may sell all Registrable Securities without volume or manner of sale restrictions pursuant to Rule 144, the Registration Statement is no longer effective, and, subject to the conditions set forth in this subsection (g), the Company shall receive a written request from the Investor (provided that the Investor has purchased at least $2 million in aggregate amount of the Securities, and provided that the Investor is not a Qualified Investor), that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities then held by the Investor, the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to the Other Investors, and subject to the limitations of this Section 6, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities that all Investors request to be registered on Form S-3 to enable the resale of the Registrable Securities by the Investor from time to time on a continuous basis pursuant to Rule 415 of the Securities Act or, only if the Company is not eligible to use Form S-3, on such other form which is appropriate to register such Registrable Securities for resale from time to time by the Investors on a continuous basis, or on a Form S-1 if a Form S-3 or such other form as referred to above is unavailable. The Company shall not be required to effect a registration pursuant to this subsection (g): (i) after the Company has effected one registration pursuant to this subsection (g); (ii) during the period starting with the date of filing of, and ending on the date one hundred eighty (180) days following the effective date of the registration statement pertaining to a public offering, other than pursuant to a registration statement on Form S-8; provided, that the Company makes reasonable good faith efforts to cause such registration statement to become effective; and (iii) if the Company shall furnish to the Investor and the Other Investors a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board, it would be materially detrimental to the Company and its stockholders for such registration statement to be effected at such time because such action (x) would materially interfere with a significant acquisition, corporate reorganization or financing or other similar transaction involving the Company, (y) would require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential (provided, that no such information will be disclosed to such Investors) or (z) would render the Company unable to comply with requirements under the Securities Act or Exchange Act, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of Investor or the in initiating Other Investor, as the case may be, provided, that such right to delay a request shall be exercised by the Company not more than once; provided, further, that the Company shall not register any securities for the account of itself or any other stockholder during such ninety (90) day period (other than pursuant to a registration statement on Form S-4 or S-8). In connection with any registration under this Section 6.2(g), the Company shall comply with Sections 6.1(e) through (h), and Sections 6.1(k) through (o), as if such registration is a registration pursuant to Section 6.1. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Securities from the Investor, if (a) the sale of such Registrable Securities is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act) and the Investor has delivered a Certificate of Subsequent Sale to the Transfer Agent; (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Securities may be made without registration under the Securities Act; or (c) such Securities are sold in compliance with Rule 144 under the Securities Act. In addition, the Company shall, at the request of the Investor, remove the restrictive legend from any Shares held by the Investor following the first date on which such Investor may sell such Shares pursuant to Rule 144 under the Securities Act (or any successor rule without limitations on volume or manner of sales. Each Investor, severally and not jointly with the Other Investors, agrees that such Investor will sell any Securities pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Securities are Registrable Securities held by an Investor that are sold pursuant to the Registration Statement, they will be sold in compliance with the Investor must also deliver to plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing Securities as set forth in this Section 6.2 is predicated upon the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferredreliance upon this understanding.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 1.2(b) below applies, the Company shall shall: (i) if deemed necessary or advisable by the Company, 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 Holders of the Shares 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 Investor Holders copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request1.2(a)(i); and (iii) upon request, inform each Investor Holder who so requests that the Company has complied with its obligations in Section 7.2(b)(i1.2(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 Investor Holder to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Holder pursuant to Section 7.2(b)(i1.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) belowSection 1.2(c), in the event 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 the 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 the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor Holders (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Holders will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Holders are advised in writing by the Company that the current Prospectus may be used, and has have received copies from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorHolders. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Holder, the Company and the Holders shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 1.2(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.21.2, the Investor Company shall use its commercially reasonable efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of exceed sixty (60) days individually, (ii) Suspensions on covering no more than two occasions of not more than 30 days each ninety (90) days, in the aggregate, shall occur during any twelve month period, unless, in period and (iii) each Suspension shall be separated by a period of at least thirty (30) days from a prior Suspension (each Suspension that satisfies the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely foregoing criteria being referred to cause herein as a violation of the Securities Act or the Exchange Act and result in liability to the Company“Qualifying Suspension”).
(ed) Provided that If a Suspension is not then in effect, the Investor Holders may sell Shares under the Registration Statement, provided that it arranges for they comply with any applicable prospectus delivery of a current Prospectus to the transferee of such Sharesrequirements. The Company shall provide cause its transfer agent to issue a Certificate without any restrictive legend to a Holder of any Shares from the Holders, if no Suspension is in effect at the time of sale, and (a) the sale of such number Shares is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act); (b) the holder has provided the Company with an opinion of current Prospectuses counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring effect that a public sale or transfer of such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferredmade without registration under the Securities Act; or (c) such Shares are sold in compliance with Rule 144 under the Securities Act.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) a. The Investor agrees that it will not effect any disposition of the Shares Registrable Securities or its right to purchase obtain the Shares Registrable Securities that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and in all cases in accordance with the procedures reasonably requested by the Company to ensure compliance with the securities laws, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distributionInvestor.
(b) b. Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 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 Shares Registrable Securities being sold thereunder, such Prospectus 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 Investor copies (which may be provided electronically) of any documents filed pursuant to Section 7.2(b)(i11(b)(i) as the Investor may reasonably request; , and (iii) inform each the Investor that the Company has complied with its obligations in Section 7.2(b)(i11(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement which that has not yet been declared effective, the Company will notify the Investor to that effect, will use its best reasonable commercial efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) c. Subject to paragraph (d) 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 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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; , or (iv) of any event or circumstance which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectusprospectus, 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 Prospectusprospectus, 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 deliver (which delivery may occur electronically) a certificate in writing to the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies (which may be provided electronically) of a supplemented or amended Prospectus prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus 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 Prospectusprospectus. In the event of any Suspension, the Company will use its best reasonable commercial efforts to cause the use of the Prospectus prospectus so suspended to be resumed as soon as reasonably practicable within 20 twenty (20) business days after the delivery of a Suspension Notice to the Investor.
. In the event that any Suspension or Suspensions pursuant to clauses (di) Notwithstanding and/or (ii) above are in effect for an aggregate of more than 15 days in a 90-day period, or any Suspension or Suspensions pursuant to clause (iii) above is in effect for an aggregate of more than 30 days in a 90-day period, or any Suspension or Suspensions are in effect for an aggregate of greater than 45 days in any 360-day period (each such period, a “Suspension Period”), then, on the foregoing paragraphs 16th, 31st or 46th day of this Section 7.2each such Suspension Period, as applicable, and on each 30th day thereafter while such applicable Suspension is in effect, issue to each of the Investors their ratable share (based on the number of Shares purchased by each such Investor in the Offering) of warrants (the “Suspension Warrants”) to purchase an aggregate number of shares of Common Stock equal to five percent (5.0%) of the Shares sold in the Offering, subject to equitable adjustment, which Suspension Warrants shall contain the same terms and provisions as the Additional Warrants, until such Suspension terminates. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, entitled to specific performance in the good faith judgment event that the Company fails to comply with the provisions of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the CompanySection 12(c).
(e) d. Provided that a Suspension is not then in effect, the Investor may sell Shares Registrable Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus prospectus to the transferee of such Shares. The Company shall provide Registrable Securities and otherwise complies with applicable federal and state securities laws in connection with such number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectusessale.
(f) e. In the event of a sale of Shares Registrable Securities by the Investor pursuant to the Registration Statement, the Investor must also shall deliver to the Company’s transfer agentagent such documentation as reasonably required to effect such transfer.
f. With a view to making available to the Lender the benefits of Rule 144, the Company agrees to:
(i) make and keep public information available, as those terms are understood and defined in Rule 144;
(ii) file with the SEC in a copy timely manner all reports and other documents required of the Company under the 1933 Act and the 1934 Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and
(iii) furnish or make available to the holders of Registrable Securities, promptly upon request,
(i) a written statement by the Company, if true, that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act or confirm in writing that such holder can sell the Registrable Securities under Rule 144, (ii) a Certificate copy of Subsequent Sale substantially the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested to permit such holder to sell such securities pursuant to Rule 144 without registration.
g. At any time beginning on the date hereof and ending at such time that all of the Registrable Securities can be sold either pursuant to a registration statement or may be sold without restriction or limitation pursuant to Rule 144, if the Company shall fail for any reason to satisfy the current public information requirement under Rule 144 (a “Public Information Failure”) then, as partial relief for the damages to the Investor 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), the Company shall, on the date on which such Public Information Failure occurs, and each 30th day thereafter, as applicable, issue to the Investor its ratable share (based on the number of Shares purchased by the Investor in the form attached hereto Offering of warrants (the “Public Information Failure Warrants”) to purchase an aggregate number of shares of Common Stock equal to five percent (5%) of the aggregate number of Shares with an exercise price and on the same terms as Exhibit Athe warrants issued to pursuant to Section 10(c) above.
h. Notwithstanding the provisions of Sections 10(c) and 11(c) with respect to the issuance of Additional Warrants, so Suspension Warrants and Public Information Failure Warrants, respectively, the Company shall not be required to issue to the Investors in the aggregate under all the Subscription Agreements executed and delivered in connection with the Offering any Additional Warrants, Suspension Warrants or Public Information Failure Warrants to the extent that the shares of Common Stock issuable upon the exercise of all the Additional Warrants, Suspension Warrants and Public Information Failure Warrants issued would exceed 75% of the Shares may be properly transferredissued in the Offering to all Investors.
Appears in 1 contract
Samples: Subscription Agreement (Broadcast International Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or Warrant Shares or its right to purchase the Shares or Warrant Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares or Warrant Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 Shares or Warrant Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectus, Prospectus or any document incorporated or deemed to be incorporated therein by reference, 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 or 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares or Warrant Shares under the Registration Statement as a result of Suspensions on more than two three occasions of not more than 30 days each in any twelve month period, period unless, in the good faith judgment of the Company’s 's Board of Directors, Directors or upon the written opinion of counsel advice of counsel, the sale of Shares or Warrant Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in potential liability to the Company.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares and Warrant Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares or Warrant Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares or Warrant Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares and Warrant Shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor Purchaser agrees that it will not effect any disposition of the Shares Securities or its right to purchase the Shares Securities that would constitute a sale within the meaning of the Securities Act except other than transactions exempt from the registration requirements of the Securities Act, as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor Purchaser or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor Purchaser copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request3(b)(i); and (iii) upon request, inform each Investor Purchaser who so requests that the Company has complied with its obligations in Section 7.2(b)(i3(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 Investor Purchaser to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i3(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor Purchaser (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchaser will refrain from selling any Shares Securities pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it Purchaser 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. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorPurchasers. 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 3(c). The Purchaser covenants that from the date hereof it will maintain in confidence the receipt and content of any Suspension Notice provided in accordance with this paragraph (c) in accordance with and subject to the Purchase Agreement.
(d) Notwithstanding the foregoing paragraphs of this Section 7.23, the Investor Company shall use its commercially reasonable efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on exceed sixty (60) days individually and (ii) no more than two occasions of not more than 30 days each in (2) Suspensions shall occur during any twelve month period, unless, in period (each Suspension that satisfies the good faith judgment foregoing criteria being referred to herein as a “Qualifying Suspension”). In the event that there occurs a Suspension (or part thereof) that does not constitute a Qualifying Suspension and Xx. Xxxxxx or any other designee of Purchaser is not the Chief Executive Officer of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale Company shall pay to the Purchaser, on the sixtieth (60th) day following the first day of such Suspension (or the first day of such part), and on each sixtieth (60th) day thereafter, an amount equal to 2.0% of the purchase price paid for the Shares under purchased by the Purchaser and not previously sold by the Purchaser (prorated in each such case for partial thirty day periods); provided, however, that in no event shall the payments made pursuant to this paragraph (d), if any, exceed in the aggregate 15.0% of such purchase price. This liquidated damage shall not apply after the Company is no longer obligated to maintain the effectiveness of the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the CompanyStatement.
(e) Provided that If a Suspension is not then in effect, the Investor Purchaser may sell Shares Securities under the Registration Statement, provided that it arranges for complies with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, Purchaser and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares Securities by the Investor pursuant to Purchaser, unless such requirement is waived by the Registration StatementCompany in writing, the Investor Purchaser must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares Securities may be properly transferred.
(g) The Company agrees that it shall, immediately prior to the Registration Statement being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that at any time the Registration Statement is effective, the transfer agent shall issue, in connection with the sale of the Securities, certificates representing such Securities without restrictive legend, provided the Securities are to be sold pursuant to the Prospectus contained in the Registration Statement and the transfer agent receives a Certificate of Subsequent Sale in the form attached hereto as Exhibit A. Upon receipt of such opinion, the Company shall cause the transfer agent to confirm, for the benefit of the Purchaser, that no further opinion of counsel is required at the time of transfer in order to issue such Securities without restrictive legend. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Securities from the Purchaser, if (a) the sale of such Securities is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act) and the Purchaser has delivered a Certificate of Subsequent Sale to the Transfer Agent; (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Securities may be made without registration under the Securities Act; or (c) such Securities are sold in compliance with Rule 144 under the Securities Act. In addition, the Company shall, at the request of the Purchaser, remove the restrictive legend from any Securities held by the Purchaser following the expiration of the holding period required by Rule 144(k) Equivalent under the Securities Act (or any successor rule).
Appears in 1 contract
Samples: Registration Rights Agreement (Global Payment Technologies Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition sale, assignment or other transfer (a "Disposition") of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the CompanyInvestor, 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 (A) 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 Shares 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 misleadingmisleading or (B) to revise or amend the plan of distribution of the Shares as requested by Investor; (ii) provide the Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business practicable, and in any event not more than thirty (30) days after the delivery of a Suspension Notice to the Investor; provided, however, that the Company shall not be required to amend a Registration Statement or supplement a Prospectus for a period of up to ninety (90) days after delivery of a Suspension Notice to the Investor if the Company's Board of Directors determines in good faith that to do so would be seriously detrimental to any proposed material financing, acquisition or disposition of assets (other than in the ordinary course of business), or any material merger, consolidation, tender offer or similar material transaction involving the Company, it being understood that the period for which the Company is obligated to keep the Registration Statement effective under Section 7.1(c) shall be extended for a number of days equal to the number of days the Company delays amendment or supplement pursuant to this provision; provided that the Company shall be able to delay amendment or supplement pursuant to this provision only once. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such SharesShares or sells the Shares pursuant to an exemption under the Securities Act. The Upon receipt of a request therefor, the Company shall agrees to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Stock Purchase Agreement (Bioject Medical Technologies Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 6.2(b) below applies, the Company shall shall: (i) if deemed necessary or advisable by the Company, 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 Note Shares 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 Investor Purchasers copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(a)(i); and (iii) upon request, inform each Investor Purchaser who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor Purchaser to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) belowSection 6.2(c), in the event 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 the 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 the 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 Note Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor Purchasers (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchasers will refrain from selling any Note Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Purchasers are advised in writing by the Company that the current Prospectus may be used, and has have received copies from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorPurchasers. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Purchaser, the Company and the Purchasers shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 6.2(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its commercially reasonable efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of exceed sixty (60) days individually, (ii) Suspensions on covering no more than two occasions of not more than 30 days each ninety (90) days, in the aggregate, shall occur during any twelve month period, unless, in period and (iii) each Suspension shall be separated by a period of at least thirty (30) days from a prior Suspension (each Suspension that satisfies the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely foregoing criteria being referred to cause herein as a violation of the Securities Act or the Exchange Act and result in liability to the Company“Qualifying Suspension”).
(ed) Provided that If a Suspension is not then in effect, the Investor Purchasers may sell Note Shares under the Registration Statement, provided that it arranges for they comply with any applicable prospectus delivery of a current Prospectus to the transferee of such Sharesrequirements. The Company shall provide cause its transfer agent to issue a Certificate without any restrictive legend to a purchaser of any Note Shares from the Purchasers, if no Suspension is in effect at the time of sale, and (a) the sale of such number Note Shares is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act); (b) the holder has provided the Company with an opinion of current Prospectuses counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring effect that a public sale or transfer of such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Note Shares may be properly transferredmade without registration under the Securities Act; or (c) such Note Shares are sold in compliance with Rule 144 under the Securities Act.
Appears in 1 contract
Samples: Secured Convertible Note Purchase and Security Agreement (Acer Therapeutics Inc.)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two three occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in potential liability to the Company.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Stock Purchase Agreement (Neurocrine Biosciences Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth provided to the Company by the Investor for inclusion in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) promptly inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable and, in any event, within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions (i) during the 30 day period commencing with the date of effectiveness of the Registration Statement, and (ii) on more than two non-consecutive occasions of not more than 30 45 days each (each such occasion to be separated by not less than 15 business days) in any twelve 12 month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for the Investor has met the Prospectus delivery requirements under the Securities Act in connection with such sale of Shares. Upon receipt of a current Prospectus request therefor, the Company has agreed to the transferee of such Shares. The Company shall provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration StatementInvestor, the Investor must shall also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AC, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ciber Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by law, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (cSection 6.2(b) below applies, the Company shall during the Effectiveness Period: (i) if deemed necessary or advisable by the Company, prepare and file from time to time with the SEC or appropriate state regulator, as applicable, a post-effective amendment to any Blue Sky Registration, 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 Blue Sky Registration or 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 Shares 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 Investor Purchaser copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(a)(i); and (iii) inform each Investor the Purchaser that the Company has complied with its obligations in Section 7.2(b)(i6.2(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement or any Blue Sky Registration which has not yet been declared effective, the Company will notify the Investor Purchaser to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Purchaser pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(cb) Subject to paragraph (d) belowSection 6.1(c), in the event event: (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of any Blue Sky Registration or the Registration Statement for amendments or supplements to a such Blue Sky Registration, the 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 such Blue Sky Registration, the 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 Shares Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, which necessitates the making of any changes in any Blue Sky Registration, the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of any Blue Sky Registration or the Registration Statement, it will not contain any untrue statement of a material fact or any omission omit 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 omit 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 the Investor Purchaser (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Purchaser will refrain from selling any Shares Registrable Securities pursuant to such Blue Sky Registration or the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it Purchaser is advised in writing by the Company that the current Blue Sky Registration or the Prospectus may be used, and has have received copies from the Company of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Blue Sky Registration or Prospectus. In the event of any Suspension, the Company will use its best commercially reasonable efforts to cause the use of the Blue Sky Registration or Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business days after the delivery of a Suspension Notice to the InvestorPurchaser. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Company and the Purchaser, the Company and the Purchaser shall be entitled to specific performance in the event that the other party fails to comply with the provisions of this Section 6.2(b).
(dc) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor Company shall use its commercially reasonable efforts to ensure that (i) a Suspension shall not exceed 30 days individually, (ii) Suspensions covering no more than 45 days, in the aggregate, shall occur during any twelve month period and (iii) each Suspension shall be prohibited separated by a period of at least 30 days from selling Shares under a prior Suspension.
(d) During the Effectiveness Period, the Company shall not require certificates evidencing the Registrable Securities not to contain any legend (including the legend set forth in Section 3.3(b)): (i) upon the effectiveness of a registration statement (including the Registration Statement as and any Blue Sky Registration) covering such Registrable Securities, or (ii) following a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares such Registrable Securities pursuant to Rule 144 and all applicable blue sky laws, or (iii) while such Registrable Securities are eligible for sale under the Registration Statement in reliance on this paragraph 7.2(dRule 144, or (iv) would be reasonably likely to cause a violation if such legend is not required under applicable requirements of the Securities Act or any blue sky law (including judicial interpretations and pronouncements issued by the Exchange Act and result in liability Staff of the SEC). Following such time as restrictive legends are not required to be placed on certificates representing Shares, Warrant Shares or Option Securities, the Company will, no later than five Trading Days following the delivery by a Purchaser to the Company or the Company.
(e) Provided that a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery ’s transfer agent of a current Prospectus certificate representing Registrable Securities containing a restrictive legend, deliver or cause to the transferee of be delivered to such SharesPurchaser a certificate representing such Registrable Securities that is free from all restrictive and other legends. The Company shall provide such number of current Prospectuses to the Investor as the Investor may reasonably requestshall, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to immediately following the Registration StatementStatement and any Blue Sky Registration being declared effective, the Investor must also deliver cause its counsel to issue a legal opinion to the Company’s transfer agent, with a copy agent to effect the removal of the restrictive legend contemplated by this Agreement. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Agreement. Certificates for Registrable Securities subject to legend removal hereunder shall be transmitted by the transfer agent of the Company to the Company, a Certificate Purchaser by crediting the account of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that Purchaser’s prime broker with the Shares may be properly transferredDepository Trust Company system.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares Securities or its right to purchase the Shares Securities that would constitute a sale within the meaning of the Securities Act except other than transactions exempt from the registration requirements of the Securities Act, as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph Subsection (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request2(b)(i); and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i2(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 Investor to that effect, will use its best commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph Subsection (d) below, in the event 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 the 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 the 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 Shares Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 omit 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 omit 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 the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares Securities pursuant to the Registration Statement (a “"Suspension”") until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Investors are 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. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 2(c). The Investor covenants that from the date hereof it will maintain in confidence the receipt and content of any Suspension Notice provided in accordance with this Section 2(c) in accordance with and subject to Section 4.6 of Annex I to the Securities Purchase Agreement.
(d) Notwithstanding the foregoing paragraphs of this Section 7.22, the Investor Company shall use its commercially reasonable efforts to ensure that (i) a Suspension shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on exceed 60 days individually and (ii) no more than two occasions of not more than 30 days Suspensions shall occur during any 12-month period (each in any twelve month period, unless, in Suspension that satisfies the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely foregoing criteria being referred to cause herein as a violation of the Securities Act or the Exchange Act and result in liability to the Company"Qualifying Suspension").
(e) Provided that If a Suspension is not then in effect, the Investor may sell Shares Securities under the Registration Statement, provided that it arranges for complies with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares Securities by the Investor pursuant to Investor, unless such requirement is waived by the Registration StatementCompany in writing, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares Securities may be properly transferred.
(g) The Company agrees that it shall, immediately prior to the Registration Statement being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that at any time the Registration Statement is effective, the transfer agent shall issue, in connection with the sale of the Securities, certificates representing such Securities without restrictive legend, provided the Securities are to be sold pursuant to the Prospectus contained in the Registration Statement and the transfer agent receives a Certificate of Subsequent Sale in the form attached hereto as Exhibit A. Upon receipt of such opinion, the Company shall cause the transfer agent to confirm, for the benefit of the Investor, that no further opinion of counsel is required at the time of transfer in order to issue such Securities without restrictive legend. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Securities from the Investor, if (a) the sale of such Securities is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act) and the Investor has delivered a Certificate of Subsequent Sale to the Transfer Agent; (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Securities may be made without registration under the Securities Act; or (c) such Securities are sold in compliance with Rule 144 under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (China Energy Recovery, Inc.)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition or other transfer of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except other than transactions exempt from the registration requirements of the Securities Act, as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor with either copies of any documents filed pursuant to Section 7.2(b)(i2(b)(i) as the Investor may reasonably requestor access to such documents electronically; and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, which necessitates the making of any material 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 omit 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 omit 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 or electronically to the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Investors are 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. Notwithstanding the foregoing, the right of the Company to implement a Suspension shall be limited to two such Suspensions in any twelve-month period, each of which may not exceed 30 days. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, entitled to specific performance in the good faith judgment event that the Company fails to comply with the provisions of this Section 2(c). The Investor covenants that from the Company’s Board date hereof it will maintain in confidence the receipt and content of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement any Suspension Notice provided in reliance on accordance with this paragraph 7.2(d(c) would be reasonably likely in accordance with and subject to cause a violation Section 4.6 of Annex I to the Securities Act or the Exchange Act and result in liability to the Company.
Purchase Agreement. (ed) Provided that If a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for complies with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In the event of a sale of Shares by the Investor pursuant to Investor, unless such requirement is waived by the Registration StatementCompany in writing, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
(f) The Company agrees that it shall, immediately prior to the Registration Statement being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that at any time the Registration Statement is effective, the transfer agent shall issue, in connection with the sale of the Shares, certificates representing such Shares without restrictive legend, provided the Shares are to be sold pursuant to the Prospectus contained in the Registration Statement and the transfer agent receives a Certificate of Subsequent Sale in the form attached hereto as Exhibit “A.” Upon receipt of such opinion, the Company shall cause the transfer agent to confirm, for the benefit of the Investor, that no further opinion of counsel is required at the time of transfer in order to issue such Shares without restrictive legend. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Shares from the Investor at Investor’s expense and upon request of Investor, if (a) the sale of such Shares is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act) and the Investor has delivered a Certificate of Subsequent Sale to the Transfer Agent; (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Shares may be made without registration under the Securities Act; or (c) such Shares are sold in compliance with Rule 144 under the Securities Act. In addition, the Company shall, at the Investors expense and upon request of the Investor, remove the restrictive legend from any Shares held by the Investor following the expiration of the holding period required by Rule 144(k) under the Securities Act (or any successor rule).
Appears in 1 contract
Samples: Registration Rights Agreement (Quantum Fuel Systems Technologies Worldwide Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition or other transfer of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except other than transactions exempt from the registration requirements of the Securities Act, as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor with either copies of any documents filed pursuant to Section 7.2(b)(i2(b)(i) as the Investor may reasonably requestor access to such documents electronically; and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i2(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 Investor to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, which necessitates the making of any material 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 omit 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 omit 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 or electronically to the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is Investors are 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. Notwithstanding the foregoing, the right of the Company to implement a Suspension shall be limited to two such Suspensions in any twelve-month period, each of which may not exceed 30 days. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, entitled to specific performance in the good faith judgment event that the Company fails to comply with the provisions of this Section 2(c). The Investor covenants that from the Company’s Board date hereof it will maintain in confidence the receipt and content of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement any Suspension Notice provided in reliance on accordance with this paragraph 7.2(d(c) would be reasonably likely in accordance with and subject to cause a violation Section 4.6 of Annex I to the Securities Act or the Exchange Act and result in liability to the Company.
Purchase Agreement. (ed) Provided that If a Suspension is not then in effect, the Investor may sell Shares under the Registration Statement, provided that it arranges for complies with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration Statement, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares may be properly transferred.
Appears in 1 contract
Samples: Registration Rights Agreement (Quantum Fuel Systems Technologies Worldwide Inc)
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request); and (iii) inform each Investor that the Company has complied with its obligations in Section 7.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 deliver a certificate in writing to the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 twenty (20) business days after the delivery of a Suspension Notice to the Investor. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two three (3) occasions of not more than 30 thirty (30) days each in any twelve month period, unless, in the good faith judgment of the Company’s 's Board of Directors, upon the written opinion of counsel advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in potential liability to the Company.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall has agreed to provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall to supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to the Registration StatementInvestor, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the Shares shares may be properly transferred.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor Holder agrees that it will not effect any disposition or other transfer of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act except other than transactions exempt from the registration requirements of the Securities Act, as contemplated in the Registration Statement referred to in Section 7.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any material changes in the information set forth in the Registration Statement regarding the Investor Holder or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor Holder with either copies of any documents filed pursuant to Section 7.2(b)(i2(b)(i) as the Investor may reasonably requestor access to such documents electronically; and (iii) upon request, inform each Investor Holder who so requests that the Company has complied with its obligations in Section 7.2(b)(i2(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 Investor Holder to that effect, will use its best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor Holder pursuant to Section 7.2(b)(i2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 the 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 the 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, which necessitates the making of any material 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 omit 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 omit 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 or electronically to the Investor Holder (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor Holder will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it Holder 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. Notwithstanding the foregoing, the right of the Company to implement a Suspension shall be limited to two such Suspensions in any twelve-month period, each of which may not exceed 45 days. In the event of any Suspension, 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 within 20 business days after the delivery of a Suspension Notice to the InvestorHolder. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Holder, the Holder shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 2(c). The Holder covenants that from the date hereof it will maintain in confidence the receipt and content of any Suspension Notice provided in accordance with this paragraph (c) in accordance with and subject to Section 4.6 of Annex I to the Securities Purchase Agreement.
(d) Notwithstanding the foregoing paragraphs of this Section 7.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that If a Suspension is not then in effect, the Investor Holder may sell Shares under the Registration Statement, provided that it arranges for complies with any applicable prospectus delivery requirements. Upon receipt of a current Prospectus to request therefor, the transferee of such Shares. The Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, Holder and shall supply copies to any other parties reasonably requiring such Prospectuses.
(fe) In The Company agrees that it shall, upon the event Registration Statement being declared effective, deliver to its transfer agent an opinion letter of a sale of counsel, opining that the transfer agent shall issue certificates representing such Shares by without restrictive legend, provided that the Investor Shares are to be sold pursuant to the Prospectus contained in the Registration Statement and that at the time of any sale of the Shares there is no stop order in place regarding the Registration Statement. Upon receipt of such opinion, the Investor must also deliver Company shall cause the transfer agent to confirm, for the benefit of the Holder, that no further opinion of counsel is required at the time of transfer in order to issue such Shares without restrictive legend. The Company shall cause its transfer agent to issue a certificate without any restrictive legend to a purchaser of any Shares from the Holder at Holder’s expense and upon request of the Holder, if (a) the sale of such Shares is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act); (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the Company’s effect that a public sale or transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit A, so that the such Shares may be properly transferredmade without registration under the Securities Act; or (c) such Shares are sold in compliance with Rule 144 under the Securities Act. In addition, the Company shall, at the Holder’s expense and upon request of the Holder, remove the restrictive legend from any Shares held by the Holder following the expiration of the holding period required by Rule 144(k) under the Securities Act (or any successor rule).
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares Securities or its right to purchase the Shares Securities 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 the Registration Statement referred to in Section 7.1 6.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(b)(i); and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 the Investor (the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “Suspension”) until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business 30 days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Company shall use its best efforts to ensure that the Investor shall not be prohibited from selling Shares Securities under the Registration Statement as a result of Suspensions on more than two occasions one occasion of not more than 30 days each in any twelve month period. If a Suspension is in effect for more than 60 days (consecutive or non-consecutive) in any twelve-month period, unlessthe Company shall, in on the good faith judgment 61st day of the Company’s Board of DirectorsSuspension and each 30th day thereafter, upon pay to the written opinion of counsel of counsel, the sale of Shares under the Registration Statement Investor an amount in reliance on this paragraph 7.2(d) would be reasonably likely cash equal to cause a violation 1% of the Securities Act or aggregate purchase price of the Exchange Act and result in liability common stock purchased by such Investor. Any such amounts due pursuant to the Companythis Section 6.1(b) shall be pro rated for periods of less than 30 days.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such SharesSecurities. The Upon receipt of a request therefor, the Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares Securities by the Investor pursuant to Investor, unless such requirement is waived by the Registration StatementCompany in writing, the Investor must also deliver to the Company’s transfer agent, with a copy to the Company, agent a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AC, so that the Shares Securities may be properly transferred. In the event of any sale of the Shares and/or the Warrant Shares in accordance with this Agreement, the restrictive legend shall be removed and the Company shall issue a certificate without such legend to the purchaser of any such Shares and/or the Warrant Shares, if (a) the sale of such Shares and/or the Warrant Shares is registered under the Registration Statement (including registration pursuant to Rule 415 under the Securities Act); (b) the holder has provided the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Shares and/or Warrant Shares may be made without registration under the Securities Act; or (c) such Shares and/or Warrant Shares are sold in compliance with Rule 144 under the Securities Act.
Appears in 1 contract
Transfer of Shares After Registration; Suspension. (a) The Investor agrees that it will not effect any disposition Disposition of the Shares or its right to purchase the Shares that would constitute a sale within the meaning of the Securities Act Act, other than transactions exempt from the registration requirements of the Securities Act, except as contemplated in the Registration Statement referred to in Section 7.1 6.1 and as described below or as otherwise permitted by lawbelow, and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the Company shall shall: (i) if deemed necessary by the Company, 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 Shares 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 Investor copies of any documents filed pursuant to Section 7.2(b)(i) as the Investor may reasonably request6.2(b)(i); and (iii) upon request, inform each Investor who so requests that the Company has complied with its obligations in Section 7.2(b)(i6.2(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 Investor to that effect, will use its best reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i6.2(b)(i) hereof when the amendment has become effective).
(c) Subject to paragraph (d) below, in the event 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 Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) of any event or circumstance which, upon the advice of its counsel, 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 the Investor (the “"Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, the Investor will refrain from selling any Shares pursuant to the Registration Statement (a “"Suspension”") until the Investor’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. In the event of any Suspension, the Company will use its best reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable within 20 business 30 days after the delivery of a Suspension Notice to the Investors. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to the Investor, the Investor shall be entitled to specific performance in the event that the Company fails to comply with the provisions of this Section 6.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.26.2, the Investor shall not be prohibited from selling Shares under the Registration Statement as a result of Suspensions on more than two occasions of not more than 30 days each in any twelve month period, unless, in the good faith judgment and any such Suspension must be separated by a period of the Company’s Board of Directors, upon the written opinion of counsel of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 7.2(dat least thirty (30) would be reasonably likely to cause days from a violation of the Securities Act or the Exchange Act and result in liability to the Companyprior Suspension.
(e) Provided that a Suspension is not then in effect, effect the Investor may sell Shares under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Shares. The Upon receipt of a request therefor, the Company shall will provide such an adequate number of current Prospectuses to the Investor as the Investor may reasonably request, and shall supply copies to any other parties reasonably requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to Investor, unless such requirement is waived by the Registration StatementCompany in writing, the Investor must also deliver to the Company’s 's transfer agent, with a copy to the Company, a Certificate of Subsequent Sale substantially in the form attached hereto as Exhibit AC, so that the Shares shares may be properly transferred.
Appears in 1 contract
