after the date on which the Registration Statement becomes effective and during the Effectiveness Period, promptly upon the request of any Holder of Registrable Common Stock, to take any action reasonably necessary to enable such Holder to use the prospectus for resales of the Registrable Common Stock, including without limitation any action necessary to identify such Holder as a selling securityholder in the Registration Statement.
If the Initial Registration Statement or any Subsequent Registration Statement ceases to be effective for any reason at any time during the Effectiveness Period (other than because all Registrable Common Stock registered thereunder has been resold pursuant thereto or has otherwise ceased to be Registrable Common Stock), the Company shall use its best efforts to
The Company shall supplement and amend the Registration Statement if required by the Securities Act or by the rules, regulations or instructions applicable to the registration form used by the Company for such Registration Statement.
From the date hereof until the end of the Effectiveness Period, the Company shall (subject to Section 2(i) below) promptly take such action as may be necessary so that (i) each of the Registration Statement and any amendment thereto and the prospectus and any amendment or supplement thereto (and each report or other document incorporated by reference therein in each case) complies in all material respects with the Securities Act and the Exchange Act of 1934, as amended (the “Exchange Act”) and the respective rules and regulations thereunder, (ii) each of the Registration Statement and any amendment thereto does not, when it becomes effective, 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 (iii) each of the prospectus and any amendment or supplement to the prospectus does not at any time during the Effectiveness Period include 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.
The Company shall promptly give written notice to each Holder (which notice pursuant to clauses (ii) through (iv) hereof shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes have been made):
when the Registration Statement and any amendment thereto has been filed with the Commission and when the Registration Statement or any post-effective amendment thereto has become effective;
of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for such purpose;
of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities included in the Registration Statement for sale in any jurisdiction or the initiation of any proceeding for such purpose;
if changes in the Registration Statement or the prospectus are required in order that the Registration Statement and prospectus do not contain an untrue statement of a material fact and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading, and
of any request by the Commission for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information.
The Company shall use its best efforts to prevent the issuance, and if issued to obtain the withdrawal, of any order suspending the effectiveness of the Registration Statement at the earliest possible time, including, to the extent necessary or appropriate for such purpose, preparing and filing a post-effective amendment or supplement to the Registration Statement or prospectus.
The Company shall furnish to each requesting Holder, without charge, at least one (1) copy of the Registration Statement and all post-effective amendments thereto, including financial statements and schedules, and, if such holder so requests in writing, all reports, other documents and exhibits that are filed with or incorporated by reference in the Registration Statement.
The Company shall, during the Effectiveness Period, deliver to each Holder, without charge, as many copies of the prospectus included in the Registration Statement (including each preliminary prospectus) and any amendment or supplement thereto as such Holder may reasonably request; and the Company consents (except during the continuance of any event described in Section 2(c)(iv) above) to the use of the prospectus and any amendment or supplement thereto by each of the Holders in connection with the offering and sale of the Registrable Common Stock covered by the prospectus and any amendment or supplement thereto during the Effectiveness Period.
Prior to any offering of the Registrable Common Stock pursuant to the Registration Statement, the Company shall (i) register or qualify or cooperate with the Holders and a single counsel for the Holders, which single counsel shall be designated by the holders of the Preferred Stock in accordance with Section 3(b) hereof, in connection with the registration or qualification of such Registrable Common Stock for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any Holder may reasonably request, (ii) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers and sales in such jurisdictions for so long as may be necessary to enable any Holder to complete its distribution of the Registrable Common Stock pursuant to the Registration Statement, and (iii) take any and all other actions necessary or advisable to enable the disposition in such jurisdictions of such Registrable Common Stock; provided, however, that in no event shall the Company be obligated to (A) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to so qualify but for this Section 2(g) or (B) file any general consent to service of process in any jurisdiction where it is not as of the date hereof so subject.
The Company shall cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing the Registrable Common Stock to be sold pursuant to the Registration Statement, which certificates shall not bear any restrictive legends and shall meet the requirements of any securities exchange on which the Company’s Common Stock is then listed and which certificates shall be in such permitted denominations and registered in such names as the Holders may request in connection with the sale of Registrable Common Stock pursuant to the Registration Statement.
Upon the occurrence of any fact or event contemplated by Section 2(c)(ii)-(v) above, the Company shall (subject to the next sentence) promptly prepare a post-effective amendment or supplement to the Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Common Stock included therein, the prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (ii) through (v) of Section 2(c) above to suspend the use of the prospectus until the requisite changes to the
prospectus have been made, then each Holder shall suspend the use of the prospectus until (i) such Holder has received copies of the supplemented or amended prospectus contemplated by the preceding sentence or (ii) such Holder is advised in writing by the Company that the use of the prospectus may be resumed and has received copies of any additional or supplemental filings that are incorporated by reference in the prospectus (the “Deferral Period”). The Company will use its best efforts to ensure that the use of the prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 2.3(i) to suspend the availability of the Registration Statement or any prospectus for one or more periods not to exceed 30 days in any 3 month period and not to exceed, in the aggregate, 90 days in any 12 month period, provided however that any Deferral Period will be for the minimum period reasonably required for the Company to prepare and file the necessary documents; and provided further that the Company agrees that it shall not suspend trading under the prospectus due to the occurrence of an event contemplated by Section 2.3(c)(iv) unless the Company shall black-out trading for all of its officers and members of its board of directors for the same period of time.
The Company shall comply in all material respects with all applicable rules and regulations promulgated under the Securities Act and the Exchange Act (the “Rules and Regulations”), and shall make generally available to its securityholders as soon as practicable, but in any event not later than eighteen months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, (ii) the effective date of each post-effective amendment to the Registration Statement, and (iii) the date of each filing by the Company with the Commission of an Annual Report on Form 10-K that is incorporated by reference in the Registration Statement, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act and the Rules and Regulations of the Commission thereunder (including, at the option of the Company, Rule 158).
The Company shall use all reasonable best efforts to take all other steps necessary to effect the registration of the Registrable Common Stock covered by the Registration Statement contemplated hereby.
The Company shall as promptly as practicable (if reasonably requested by Holder), incorporate in a prospectus supplement or post-effective amendment to the Registration Statement such information as Holder shall, on the basis of an opinion of counsel experienced in such matters, determine to be required to be included therein and make any required filings of such prospectus supplement or such post-effective amendment; provided that the Company shall not be required to take any actions under this Section 2.3(l) that are not, in the reasonable opinion of counsel for the Company, in compliance with applicable law.
Registration Expenses.
All fees and expenses incident to the registration of the Registrable Common Stock by the Company shall be borne by it whether or not any Registration Statement is filed or becomes effective and whether or not any securities are issued or sold pursuant to any Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including without limitation fees and expenses (A) with respect to filings required to be made with the National Association of Securities Dealers, Inc. and (B) in compliance with securities or blue sky laws (including without limitation and in addition to that provided for in (b) below, reasonable fees and disbursements of counsel for the underwriters or counsel for the holders of Registrable Common Stock in connection with blue sky qualifications of the Registrable Common Stock)), (ii) printing expenses (including without limitation expenses of printing certificates for Registrable Common Stock and of printing prospectuses), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company and single counsel for the Holders, in accordance with the provisions of Section 3(b) hereof, (v) Securities Act liability insurance, if the Company desires such insurance, and (vi) fees and expenses of all other persons retained by the Company. In addition, the Company shall pay its internal expenses (including without limitation all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit, and the fees and expenses incurred in connection with the listing of the securities on a securities exchange. Notwithstanding the foregoing or anything in this Agreement to the contrary, each holder of the Registrable Common Stock being registered shall pay all selling fees, discounts and commissions with respect to any Registrable Common Stock sold by it and the fees and disbursements of any counsel or other advisors or experts retained by such holders (severally or jointly), other than counsel referred to in clause (iv) above.
In connection with any registration hereunder, the Company shall reimburse the Holders for the reasonable fees and disbursements of not more than one counsel if such counsel is also the counsel for the holders of the Preferred Stock. Each Holder hereby agrees that, to the extent permitted by the holders of the Preferred Stock, in each case in which a single counsel for the Holders is provided for in these Registration Rights, the Holders and the holders of the Preferred Stock shall be represented as a group by the same single counsel that is retained by the holders of the Preferred Stock in accordance with the registration rights of the holders of Preferred Stock.
Indemnification and Contribution.
Indemnification by the Company.
The Company shall indemnify and hold harmless each Holder and each of its officers and directors and each person who controls such Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such person being sometimes referred to as an “Indemnified Person”) against any losses, claims, damages or liabilities, joint or several, to which such Indemnified Person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any prospectus contained therein or furnished by the Company to any Indemnified Person, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company in connection with any such registration, qualification or compliance; and
the Company hereby agrees to reimburse such Indemnified Person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable to any such Indemnified Person in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement or prospectus, or amendment or supplement thereto, in reliance upon and in conformity with written information relating to such Indemnified Person furnished to the Company by or on behalf of such Indemnified Person expressly for use therein; provided, further, however, that the foregoing indemnity agreement with respect to any prospectus shall not inure to the benefit of any Indemnified Person who failed to deliver a final prospectus or an amendment or supplement thereto (provided by the Company to the several Indemnified Persons in the requisite quantity and on a timely basis to permit proper delivery on or prior to the relevant transaction date) to the person asserting any losses, claims, damages and liabilities and judgments caused by any untrue statement or alleged untrue statement of a material fact contained in any prospectus, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, if such material misstatement or omission or alleged material misstatement or omission was cured in the final prospectus or an amendment or supplement thereto.
Indemnification by the Holders. Each Holder agrees, as a consequence of the inclusion of any of such Holder’s Registrable Common Stock in any Registration Statement, severally and not jointly, to (i) indemnify and hold harmless the Company, its directors, officers who sign such Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities to which the Company or such other persons may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such Registration Statement or prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information relating to such Holder furnished to the Company by or on behalf of such Holder expressly for use therein and (ii) reimburse the Company and its directors and officers who sign such Registration Statement for any legal or other expenses reasonably incurred by the Company and such directors and officers in connection with investigating or defending any such action or claim as such expenses are incurred.
Notices of Claims, Etc. Promptly after receipt by an indemnified party under subsection (a) or (b) of this Section 4 of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under this Section 4, notify such indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 4. In case any such action shall be brought against any indemnified party and it shall notify an indemnifying party of the commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, such indemnifying party shall not be liable to such indemnified party under this Section for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, which consent will not be unreasonably withheld, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party.
Contribution. If the indemnification provided for in this Section is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) of this Section 4 in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information about such indemnifying party or indemnified party supplied by such indemnifying party or by such indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 4(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Holders in this Section 4(d) to contribute shall be several in proportion to the percentage of Registrable Common Stock registered by them and not joint.
Notwithstanding any other provision of this Section 4, in no event will any Holder be required to undertake liability to any person under this Section 4 for any amounts in excess of the dollar amount of the proceeds to be received by such Holder from the sale of such Holder’s Registrable Common Stock (after deducting any fees, discounts and commissions applicable thereto) pursuant to any Registration Statement.
The obligations of the Company under this Section 4 shall be in addition to any liability that the Company may otherwise have to any Indemnified Person and the obligations of any Indemnified Person under this Section 4 shall be in addition to any liability that such Indemnified Person may otherwise have to the Company. The remedies provided in this Section 4 are not exclusive and shall not limit any rights or remedies that may otherwise be available to an indemnified party at law or in equity.
