EXHIBIT 4.4
NOVACEA, INC.
2005 AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
December 21, 2005
2005 AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
This 2005 Amended and Restated
Investor Rights Agreement (the “ Agreement
”) is made as of December 21, 2005 among Novacea, Inc, a
Delaware corporation (the “ Company ”),
the stockholders listed on Exhibit A hereto
(individually an “ Investor ” and
collectively the “ Investors ”), Oregon
Health & Science University (“ OHSU
”), and University of Pittsburgh of the Commonwealth System
of Higher Education (“ Pitt
”).
RECITALS
The Company and certain of the
Investors have entered into a 2005 Series C Preferred Stock
Purchase Agreement (the “ Purchase Agreement
”) of even date herewith pursuant to which the Company wants
to sell to such Investors and such Investors want to purchase from
the Company shares of the Company’s Series C Preferred
Stock. One condition to such Investors’ obligations to
purchase shares of the Company’s Series C Preferred Stock
under the Purchase Agreement is that the Company and such Investors
enter into this Agreement in order to provide such Investors with
certain rights to register shares of the Company’s Common
Stock issuable upon conversion of the Series C Preferred Stock
held by such Investors, certain rights to receive information
pertaining to the Company, and a right of first offer with
respect to certain issuances by the Company of its securities. The
Company wants to induce such Investors to purchase shares of
Series C Preferred Stock pursuant to the Purchase Agreement by
agreeing to the terms and conditions set forth herein.
The Company had previously entered
into that certain Amended and Restated Investor Rights Agreement
dated December 16, 2003 among the Company and certain
Investors (the “ Prior Agreement ”). The
parties to the Prior Agreement want to amend and restate the Prior
Agreement in its entirety, and to accept the rights and
restrictions created in this Agreement in lieu of the rights and
restrictions contained in the Prior Agreement. Section 5.10 of
the Prior Agreement vested the authority to amend the Prior
Agreement in the Company and the holders of sixty percent
(60%) of the Registrable Securities (as defined in the Prior
Agreement) and provided that any such amendment would be binding
upon all parties to the Prior Agreement. The holders of a majority
of the Registrable Securities (as defined in the Prior Agreement)
are entering into this Agreement, making this Agreement binding
upon all of the parties to the Prior Agreement.
AGREEMENT
The parties agree as follows:
1. Restrictions on
Transferability; Registration Rights
1.1 Certain Definitions
. As used in this Agreement, the following terms have the following
respective meanings:
“ Board ”
means the board of directors of the Company.
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“ Commission
” means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities
Act.
“ Exchange Act
” means the Securities Exchange Act of 1934, as amended, or
any similar successor federal statute, and the rules and
regulations thereunder, all as the same shall be in effect from
time to time.
“ Form S-3 Initiating
Holders ” means any Holder or Holders of the
Registrable Securities then outstanding and who propose to register
securities, the aggregate offering price of which, net of
underwriting discounts and commissions, exceeds
$1,000,000.
“ Holder ”
means (i) any Investor holding Registrable Securities and
(ii) any person holding Registrable Securities to whom the
rights under this Agreement have been transferred in accordance
with Section 1.11 hereof.
“
Initiating Holders ” means any Holder or
Holders who in the aggregate hold not less than twenty percent
(20%) of the Registrable Securities then
outstanding.
“ IPO ”
means the first firmly underwritten public offering of the Common
Stock of the Company to the general public that is affected
pursuant to a registration statement filed with, and declared
effective by, the Commission under the Securities Act.
“ New Securities
” means any shares of capital stock of the Company, including
Common Stock and Preferred Stock, whether authorized or not, and
rights, options, or warrants to purchase said shares of capital
stock, and securities of any type whatsoever that are, or may
become, convertible into capital stock; provided ,
however , that the term “New Securities” does
not include (i) the issuance of Common Stock upon the
conversion of any then-outstanding bonds, debentures, notes or
other evidences of indebtedness, and any warrants, shares or any
other securities convertible into, exercisable for, or exchangeable
for Common Stock; (ii) the issuance of any Common Stock or
bonds, debentures, notes or other evidences of indebtedness, and
any warrants, shares or any other securities convertible into,
exercisable for, or exchangeable for Common Stock as a dividend on
the Company’s stock; (iii) the issuance of shares of
Common Stock (or options to purchase shares of Common Stock) to
officers, employees, directors, advisors or consultants of the
Company under stock option or restricted stock purchase plans or
agreements approved by the Board of Directors (not including the
reissuance of shares repurchased by the Company from employees or
consultants of the Company); (iv) the issuance of shares of
Common Stock or bonds, debentures, notes or other evidences of
indebtedness, and any warrants, shares or any other securities
convertible into, exercisable for, or exchangeable for Common Stock
to lenders, financial institutions, equipment lessors, or real
estate lessors to the Company in connection with a bona fide
borrowing or leasing transaction approved by the Board of
Directors; (v) the issuance of shares of Common Stock or
bonds, debentures, notes or other evidences of indebtedness, and
any warrants, shares or any other securities convertible into,
exercisable for, or exchangeable for Common Stock in connection
with development
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partnerships, licensing or
collaboration arrangements, or similar transactions, in each case
approved by the Board of Directors; (vi) the issuance of
Common Stock or bonds, debentures, notes or other evidences of
indebtedness, and any warrants, shares or any other securities
convertible into, exercisable for, or exchangeable for Common Stock
pursuant to the acquisition of another business by the Company by
merger, purchase of substantially all of the assets or shares, or
other reorganization whereby the Company or its stockholders own
not less than a majority of the voting power of the surviving or
successor business, provided such transaction has been approved by
the Board of Directors.
“ Other Stockholders
” means persons
other than Holders who, by virtue of agreements with the Company,
are entitled to include their securities in certain registrations
hereunder.
“ Pro Rata
Portion ” means the ratio that (x) the sum of
the number of shares of the Company’s Common Stock held by an
Investor immediately prior to the issuance of New Securities,
assuming full exercise and/or conversion of the Shares and all
Company securities exercisable and/or convertible into the
Company’s Common Stock then held by such Investor, bears to
(y) the sum of the total number of shares of the
Company’s Common Stock then outstanding, assuming full
exercise and/or conversion of all Company securities exercisable
and/or convertible into the Company’s Common Stock then
outstanding.
The terms “
register ”, “ registered
” and “ registration ” refer to a
registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such registration
statement.
“ Registration
Expenses ” shall mean all expenses incurred by the
Company in complying with Sections 1.3, 1.4, and 1.5 hereof,
including, without limitation, all registration, qualification,
listing and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and
expenses, and the expense of any special audits incident to or
required by any such registration (but excluding the compensation
of regular employees of the Company which shall be paid in any
event by the Company), but shall not include Selling Expenses or
fees and disbursements of counsel for the Holders.
“ Registrable
Securities ” shall mean (i) shares of Common
Stock issued or issuable pursuant to the conversion of the Shares
and (ii) any Common Stock of the Company issued as a dividend
or other distribution with respect to or in exchange for or in
replacement of the shares referenced in clause (i) above;
provided , however , that shares of Common Stock or
other securities shall only be treated as Registrable Securities if
and so long as they have not been (A) sold to or through a
broker or dealer or underwriter in a public distribution or a
public securities transaction, (B) sold in a transaction
exempt from the registration and prospectus delivery requirements
of the Securities Act under Section 4(1) thereof so that all
transfer restrictions and restrictive legends with respect thereto
are removed upon the consummation of such sale,
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(C) transferred in a
transaction pursuant to which the registration rights are not also
assigned in accordance with Section 1.11 hereof, or
(D) with respect to each Holder, all such shares held by such
Holder become eligible for sale under Rule 144 of the
Securities Act (or any similar or successor rule) during any one
ninety (90) day period.
“ Restricted
Securities ” shall mean the securities of the Company
required to bear the legend set forth in Section 1.2
hereof.
“ Rule 144
” means Rule 144 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or
any similar successor rule that may be promulgated by the
Commission.
“ Rule 145
” means Rule 145 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or
any similar successor rule that may be promulgated by the
Commission.
“ Securities Act
” shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder or any similar federal
statute and the rules and regulations of the Commission thereunder,
all as the same shall be in effect at the time.
“ Selling
Expenses ” shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the
securities registered by the Holders and all fees and disbursements
of counsel for any Holder.
“ Shares ”
means the Company’s Series A-1 Preferred Stock, Series A-2
Preferred Stock, Series B Preferred Stock, Series B-1 Preferred
Stock, Series C Preferred Stock and Series C-1 Preferred Stock
.
1.2 Restrictions .
(a) Each Holder agrees not to make
any disposition of all or any portion of the Registrable Securities
unless and until the transferee has agreed in writing for the
benefit of the Company to be bound by this Section 1.2 and
Section 1.14, provided and to the extent such Sections are
then applicable, and (i) there is then in effect a
registration statement under the Securities Act covering such
proposed disposition and such disposition is made in accordance
with such registration statement, or (ii) such Holder shall
have notified the Company of the proposed disposition and shall
have furnished the Company with a detailed statement of the
circumstances surrounding the proposed disposition, and, if
reasonably requested by the Company, such Holder shall have
furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company, that such disposition will not require
registration under the Securities Act. Notwithstanding the
foregoing, no such registration statement or opinion of counsel
shall be necessary for a transfer by a Holder which is (A) a
partnership to its partners or retired partners in accordance with
partnership interests, (B) a limited liability company to its
members or former members in accordance with their interest in the
limited liability company, (C) a corporation to its
shareholders in accordance with their interests in the corporation,
or (D) to the Holder’s family member or trust for the
benefit of an individual Holder, provided in all
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cases enumerated in clauses (A) –
(D) that the transferee is subject to the terms of this
Section 1.2 and Section 1.14 as if such transferee were
an original Holder hereunder. Each Holder consents to the Company
making a notation on its records and giving instructions to any
transfer agent of the Restricted Securities in order to implement
the restrictions on transfer established in this
Section 1.2.
(b) Each certificate representing
Registrable Securities shall be stamped or otherwise imprinted with
legends substantially in the following forms (in addition to any
legend required under applicable state securities laws or the
Company’s charter documents):
“THE SHARES REPRESENTED BY
THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH
SHARES MAY NOT BE SOLD, TRANSFERRED, OR PLEDGED IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE COMPANY AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.”
“THE SHARES REPRESENTED BY
THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE
TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE SHAREHOLDER, A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY.”
(c) The Company shall promptly
reissue unlegended certificates at the request of any Holder
thereof if the Holder shall have obtained an opinion of counsel
reasonably acceptable to the Company to the effect that the
securities proposed to be disposed of may lawfully be disposed of
without registration, qualification, or legend.
1.3 Requested Registration
.
(a) Request for Registration
. If the Company shall receive from Initiating Holders a written
request that the Company effect any registration, qualification, or
compliance, the Company will:
(i) promptly deliver written notice
of the proposed registration, qualification, or compliance to all
other Holders; and
(ii) as soon as practicable, use its
best efforts to effect such registration, qualification, or
compliance (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities
laws, and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or
regulations) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together
with all or such portion of the
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Registrable Securities of any Holder or Holders
joining in such request as are specified in a written request
delivered to the Company within twenty (20) days after
delivery of such written notice from the Company;
provided, however, that the Company shall not be obligated to take
any action to effect any such registration, qualification, or
compliance pursuant to this Section 1.3:
(A) Prior to the earlier of:
(i) three (3) years following the date of this Agreement,
or (ii) six (6) months following the effective date of
the IPO;
(B) After the Company has effected
two (2) such registrations pursuant to this Section 1.3,
such registrations have been declared or ordered effective, and the
securities offered pursuant to such registrations have been
sold;
(C) During the period starting with
the date thirty (30) days prior to the Company’s
estimated date of filing of, and ending on a date one hundred and
eighty (180) days after the effective date of, a registration
initiated by the Company; provided that the Company
is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective and that the
Company’s estimate of the date of filing such registration
statement is made in good faith;
(D) In any particular jurisdiction
in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification
or compliance unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities
Act; and
(E) If in the good faith judgment of
the Board, such registration would be seriously detrimental to the
Company and the Board concludes, as a result, that it is essential
to defer the filing of such registration statement at such time,
and the Company thereafter delivers to the Initiating Holders a
certificate, signed by the President or Chief Executive Officer of
the Company, stating that in the good faith judgment of the Board
it would be detrimental to the Company or its stockholders for a
registration statement to be filed in the near future, then the
Company’s obligation to use its best efforts to register,
qualify, or comply under this Section 1.3 shall be deferred
for a period not to exceed ninety (90) days from the delivery
of the written request from the Initiating Holders; provided
, however , that the Company may not utilize this right more
than twice in any twelve (12) month period;
Subject to the foregoing clauses (A)
through (E), the Company shall file a registration statement
covering the Registrable Securities so requested to be registered
as soon as practicable after receipt of the request or requests of
the Initiating Holders. The registration statement filed pursuant
to the request of the Initiating Holders may, subject to the
provisions of Sections 1.3(c) and Section 1.13 hereof, include
other securities of the Company with respect to which registration
rights have been granted, and may include securities being sold for
the account of the Company.
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(b) Underwriting . The right
of any Holder to registration pursuant to this Section 1.3
shall be conditioned upon such Holder’s participation in such
underwriting and the inclusion of such Holder’s Registrable
Securities in the underwriting to the extent provided herein. A
Holder may elect to include in such underwriting all or a part of
the Registrable Securities held by such Holder.
(c) Procedures . If the
Company shall request inclusion in any registration pursuant to
this Section 1.3 of securities being sold for its own account,
or if other persons shall request inclusion in any registration
pursuant to this Section 1.3, the Initiating Holders shall, on
behalf of all Holders, offer to include such securities in the
underwriting and may condition such offer on their acceptance of
the applicable provisions of this Section 1 (including without
limitation Section 1.14). The Company shall (together with all
Holders or other persons proposing to distribute their securities
through such underwriting) enter into and perform its obligations
under an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by a majority in
interest of the Initiating Holders (which managing underwriter
shall be reasonably acceptable to the Company). Notwithstanding any
other provision of this Section 1.3, if the managing
underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to
be underwritten, the number of shares to be included in the
underwriting or registration shall be allocated as set forth in
Section 1.13. If any person who has requested inclusion in
such registration as provided above disapproves of the terms of the
underwriting, such person shall be excluded therefrom by written
notice delivered by the Company or the managing underwriter. Any
Registrable Securities and/or other securities so excluded or
withdrawn shall also be withdrawn from registration.
1.4 Registration on
Form S-3 .
(a) Qualification on Form S-3
. After the IPO, the Company shall use its best efforts to qualify
for registration on Form S-3 or any comparable or successor
form. To that end the Company shall register (whether or not
required by law to do so) its Common Stock under the Exchange Act
in accordance with the provisions of the Exchange Act following the
effective date of the first registration of any securities of the
Company on Form S-1 or any comparable or successor form or
forms.
(b) Request for Registration on
Form S-3 . After the Company has qualified for the use of Form
S-3, if the Company shall receive from Form S-3 Initiating Holders
a written request that the Company effect a registration on Form
S-3 the Company will:
(i) promptly deliver written
notice of the proposed registration to all other Holders;
and
(ii) as soon as practicable,
use its best efforts to effect such registration, qualification, or
compliance (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities
laws, and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or
regulations) as may be so
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requested and as would permit or facilitate the
sale and distribution of all or such portion of such Registrable
Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any Holder or Holders
joining in such request as are specified in a written request
delivered to the Company within twenty (20) days after
delivery of such written notice from the Company;
provided, however, that the Company shall not be obligated to take
any action to effect any such registration, qualification, or
compliance pursuant to this Section 1.4:
(A) After the sixth anniversary of
the IPO;
(B) After the Company has effected
two (2) such registrations pursuant to this Section 1.4
in any given calendar year, such registrations have been declared
or ordered effective and the securities offered pursuant to such
registrations have been sold;
(C) During the period starting with
the date thirty (30) days prior to the Company’s
estimated date of filing of, and ending on a date one hundred and
eighty (180) days after the effective date of, a registration
initiated by the Company; provided , that the Company
is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective and that the
Company’s estimate of the date of filing such registration
statement is made in good faith;
(D) In any particular jurisdiction
in which the Company would be required to execute a general consent
to service of process in effecting such registration,
qualification, or compliance unless the Company is already subject
to service in such jurisdiction and except as may be required by
the Securities Act;
(E) If in the good faith judgment of
the Board, such registration would be seriously detrimental to the
Company and the Board concludes, as a result, that it is essential
to defer the filing of such registration statement at such time,
and the Company thereafter delivers to the Initiating Holders a
certificate, signed by the President or Chief Executive Officer of
the Company, stating that in the good faith judgment of the Board
it would be detrimental to the Company or its stockholders for a
registration statement to be filed in the near future, then the
Company’s obligation to use its best efforts to register,
qualify, or comply under this Section 1.4 shall be deferred
for a period not to exceed sixty (60) days from the date of
delivery of the written request from the Initiating Holders;
provided , however , that the Company may not utilize
this right more than once in any twelve (12) month
period.
(c) Underwriting; Procedure .
If a registration requested under this Section 1.4 is for an
underwritten offering, the provisions of Sections 1.3(b) and 1.3(c)
shall apply to such registration.
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1.5 Company Registration
.
(a) Notice of Registration .
If the Company shall determine to register any of its securities,
either for its own account or the account of a security holder or
holders other than (A) a registration pursuant to Sections 1.3
or 1.4 hereof, (B) a registration relating solely to employee
benefit plans, (C) a registration relating solely to a Rule
145 transaction, or (D) a registration on any registration
form that does not permit secondary sales, the Company
will:
(i) promptly deliver to each Holder
written notice thereof; and
(ii) use its best efforts to include
in such registration (and any related qualification under blue sky
laws or other compliance), except as set forth in
Section 1.5(b) below, and in any underwriting involved
therein, all the Registrable Securities specified in a written
request or requests made by any Holder and delivered to the Company
within ten (10) days after the written notice is delivered by
the Company. Such written request may include all or a portion of a
Holder’s Registrable Securities.
(b) Underwriting; Procedures
. If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company
shall so advise the Holders as a part of the written notice given
pursuant to Section 1.5(a)(i). In such event, the right of any
Holder to registration pursuant to this Section 1.5 shall be
conditioned upon such Holder’s participation in such
underwriting and the inclusion of Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing
to distribute their securities through such underwriting shall
(together with the Company and the other holders distributing their
securities through such underwriting) enter into and perform their
obligations under an underwriting agreement in customary form with
the managing underwriter selected for such underwriting by the
Company. Notwithstanding any other provision of this
Section 1.5, if the managing underwriter determines that
marketing factors require a limitation of the number of shares to
be underwritten, the managing underwriter may exclude all
Registrable Securities from, or limit the number of Registrable
Securities to be included in, the registration and underwriting.
The Company shall so advise all holders of securities requesting
registration, and the number of shares of securities that are
entitled to be included in the registration and underwriting shall
be allocated as set forth in Section 1.13. If any person who
has requested inclusion in such registration as provided above
disapproves of the terms of the underwriting, such person shall be
excluded therefrom by written notice delivered by the Company or
the managing underwriter. Any Registrable Securities and/or other
securities so excluded or withdrawn shall also be withdrawn from
registration.
(c) Right to Terminate
Registration . The Company shall have the right to terminate or
withdraw any registration initiated by it under this
Section 1.5 prior to the effectiveness of such registration,
whether or not any Holder has elected to include securities in such
registration.
1.6 Registration Procedures .
In the case of each registration, qualification, or compliance
effected by the Company pursuant to this Section 1, the
Company will keep each Holder advised in writing as to the
initiation of each registration, qualification, and compliance and
as to the completion thereof and, at its expense, the Company will
use its best efforts to:
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(a) Prepare and file with the
Commission a registration statement with respect to such securities
and use its best efforts to cause such registration statement to
become and remain effective for at least ninety (90) days or
until the distribution described in the registration statement has
been completed, whichever occurs first; provided ,
however , that (i) such 90-day period shall be extended
for a period of time equal to the period the Holder refrains from
selling any securities included in such registration at the request
of an underwriter of common stock or other securities of the
Company, and (ii) in the case of any registration of
Registrable Securities on Form S-3 which are intended to be offered
on a continuous or delayed basis, such 90-day period shall be
extended, if necessary, up to one hundred eighty (180) days to
keep the registration statement effective until all such
Registrable Securities are sold, however in no event longer than
one year from the effective date of the registration statement and
provided that if Rule 415, or any successor rule under the
Securities Act, permits an offering on a continuous or delayed
basis, and provided further that if applicable rules under the
Securities Act governing the obligation to file a post-effective
amendment permit, in lieu of filing a post-effective amendment
which (A) includes any prospectus required by
Section 10(a)(3) of the Securities Act or (B) reflects
facts or events representing a material or fundamental change in
the information set forth in the registration statement, the
incorporation by reference of information required to be included
in (A) and (B) above shall be contained in periodic
reports filed pursuant to Section 13 or 15(d) of the Exchange
Act in the registration statement;
(b) Furnish to the Holders
participating in such registration and to the underwriters of the
securities being registered such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus,
and such other documents as such underwriters may reasonably
request in order to facilitate the public offering of such
securities;
(c) Prepare and file with the
Commission such amendments and supplements to such registration
statement and the prospectus used in connection with such
registration statements as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement;
(d) Notify each seller of
Registrable Securities covered by such registration statement at
any time when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any event as
a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or incomplete in the light of the circumstances then
existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchaser of such
shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or incomplete in the light of the circumstances then
existing;
(e) Use its best efforts to register
and qualify the securities covered by such registration statement
under such other securities or blue sky laws of such jurisdictions
as
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shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions;
(f) Cause all such Registrable
Securities to be listed on each securities exchange on which
similar securities issued by the Company are then
listed;
(g) Provide a transfer agent and
registrar for all Registrable Securities and a CUSIP number for all
such Registrable Securities, in each case not later than the
effective date of such registration;
(h) Use its best efforts to furnish,
at the request of any Holder requesting registration of Registrable
Securities pursuant to this Section 1, on the date that such
Registrable Securities are delivered to the underwriters for sale
in connection with a registration pursuant to this Section 1,
if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date
that the registration statement with respect to such securities
becomes effective, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities and (ii) a letter, dated such date,
from the independent certified public accountants of the Company,
in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities (to the
extent the then-applicable standards of professional conduct permit
said letter to be addressed to the Holders).
(i) In the event of any underwritten
public offering, enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the
managing underwriter(s) of such offering.
1.7 Information by Holder .
The Holder or Holders of Registrable Securities included in any
registration shall furnish to the Company such information
regarding such Holder or Holders, the Registrable Securities held
by them, and the distribution proposed by such Holder or Holders as
the Company may request in writing and as shall be required in
connection with any registration, qualification, or compliance
referred to in this Section 1, and the refusal to furnish such
information by any Holder or Holder shall relieve the Company of
its obligations in this Section 1 with respect to such Holder
or Holders. Furthermore, the Company shall have no obligation with
respect to any registration requested pursuant to Section 1.3
or Section 1.4 of this Agreement if, as a result of the
application of the preceding sentence, the number of shares or the
anticipated aggregate offering price of the Registrable Securities
to be included in the registration does not equal or exceed the
number of shares or the anticipated aggregate offering price
required to originally trigger the Company’s obligation to
initiate such registration as specified in the definition of
“Initiating Holders” or “Form S-3 Initiating
Holders,” whichever is applicable.
11
1.8 Indemnification
.
(a) To the extent permitted by law,
the Company will indemnify each Holder, each of its officers,
directors, partners, legal counsel, and accountants, and each
person controlling such Holder within the meaning of
Section 15 of the Securities Act, with respect to which
registration, qualification, or compliance has been effected
pursuant to this Section 1, and each underwriter, if any, and
each person who controls any underwriter within the meaning of
Section 15 of the Securities Act, against all expenses,
claims, losses, damages, or liabilities (or actions, proceedings,
or settlements in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering
circular, or other document (including any related registration
statement, notification, or the like), or any amendment or
supplement thereto, incident to any such registration,
qualification, or compliance, or based on 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 in which they were made, not misleading, or any
violation by the Company of the Securities Act or any rule or
regulation promulgated under the Securities Act applicable to the
Company in connection with any such registration, qualification, or
compliance, and the Company will reimburse each such Holder, each
of its officers, directors, partners, legal counsel, and
accountants, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for
any legal and any other expenses reasonably incurred in connection
with investigating, preparing, defending, or settling any such
claim, loss, damage, liability, or action, as such expenses are
incurred, provided that the Company will not be liable in any such
case to the extent that any such claim, loss, damage, liability, or
expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the
Company by such Holder, controlling person, or underwriter and
stated to be specifically for use therein. It is agreed that the
indemnity agreement contained in this Section 1.8 shall not
apply to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably
withheld).
(b) To the extent permitted by law,
each Holder will, if Registrable Securities held by such Holder are
included in the secur
