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Exhibit 4.2
DEVAX, INC.
THIRD AMENDED AND RESTATED INVESTOR RIGHTS
AGREEMENT
October 21, 2005
DEVAX, INC.
THIRD AMENDED AND RESTATED INVESTOR RIGHTS
AGREEMENT
THIS THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the
"Agreement") is entered into as of the 21st day of October, 2005,
by and among DEVAX, INC. , a Delaware corporation (the
"Company"), the holders of shares of the Company’s Common
Stock listed on Exhibit A attached hereto (each a
"Common Holder" and, collectively, the "Common Holders"), the
investors listed on Exhibit B attached hereto (the
"Investors") and Occam International B.V. ("Occam") and Roberts
Mitani, LLC ("Roberts Mitani"), each a holder of warrants to
purchase shares of the Company’s Common Stock (the "Warrant
Holders").
RECITALS
WHEREAS, certain of the Investors (the "Series D
Investors") are purchasing shares of the Company’s
Series D Preferred Stock (the "Series D Preferred
Stock"), pursuant to that certain Series D Preferred Stock
Purchase Agreement (the "Purchase Agreement") of even date herewith
(the "Financing");
WHEREAS, the obligations in the Purchase Agreement are
conditioned upon the execution and delivery of this Agreement;
WHEREAS, certain of the Investors (the "Prior Investors")
are holders of the Company’s Series C Preferred Stock (the
"Series C Preferred Stock"), Series B Preferred Stock (the "Series
B Preferred Stock") and Series A Preferred Stock (the
"Series A Preferred Stock" and together with, the
Series B Preferred Stock, the Series C Preferred Stock and the
Series D Preferred Stock shall be referred to herein collectively
as the "Preferred Stock");
WHEREAS, the Prior Investors and the Company are parties
to that Second Amended and Restated Investor Rights Agreement,
dated March 26, 2004 (the "Prior Agreement");
WHEREAS, the Warrant Holders have each executed a form of
Joinder to the Prior Agreement and have become parties thereto;
WHEREAS, the parties to the Prior Agreement desire to
amend and restate the Prior Agreement and accept the rights and
covenants hereof in lieu of their rights and covenants under the
Prior Agreement; and
WHEREAS, in connection with the consummation of the
Financing, the Company and the Investors have agreed to the
registration rights, information rights, and other rights as set
forth below.
NOW, THEREFORE, in consideration of these premises and
for other good and valid consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. GENERAL
1.1 Definitions . As used in this Agreement the following
terms shall have the following respective meanings:
"Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Form S-3" means such form under
the Securities Act as in effect on the date hereof or any successor
registration form under the Securities Act subsequently adopted by
the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company
with the SEC.
"Holder" means any person owning of record
Registrable Securities that have not been sold to the public or any
assignee of record of such Registrable Securities in accordance
with Section 2.10 hereof.
"Initial Offering" means the Company’s first
firm commitment underwritten public offering of its Common Stock
registered under the Securities Act.
"Major Investor" means any Holder of Series D
Preferred Stock, Series C Preferred Stock or Series B
Preferred Stock.
"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
effectiveness of such registration statement or document.
"Registrable Securities" means (a) Common
Stock of the Company issued or issuable upon conversion of the
Shares; (b) any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or
option, other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement
of, such above-described securities; (c) any Common Stock of
the Company held by the Common Holders; (d) any Common Stock
of the Company issued, or issuable, upon the exercise of the
warrants held by the Warrant Holders and (e) any Common Stock
of the Company issued, or issuable, upon exercise of the warrants
held by the Investors and their permitted assigns. Notwithstanding
the foregoing, Registrable Securities shall not include any
securities (i) sold by a person to the public either pursuant
to a registration statement or Rule 144 under the Securities
Act, or (ii) sold in a private transaction in which the
transferor’s rights under Section 2 of this Agreement
are not assigned.
"Registrable Securities then outstanding" shall be
the number of shares determined by calculating the total number of
shares of the Company’s Common Stock that are Registrable
Securities and either (a) are then issued and outstanding or
(b) are issuable pursuant to then exercisable or convertible
securities.
"Registration Expenses" shall mean all expenses
incurred by the Company in complying with Sections 2.2, 2.3
and 2.4 hereof, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel
for the Company, reasonable fees and disbursements not to exceed
Thirty Thousand Dollars ($30,000) of a single special counsel for
the Holders, 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).
"SEC" or "Commission" means the
Securities and Exchange Commission.
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"Securities Act" shall mean the
Securities Act of 1933, as amended.
"Selling Expenses" shall mean all underwriting
discounts and selling commissions applicable to the sale.
"Series C Investor" shall mean an Investor holding
shares of Series C Preferred Stock.
"Shares" shall mean the Preferred Stock held by
the Investors listed on Exhibit B attached hereto and
their permitted assigns.
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER.
2.1 Restrictions On Transfer.
(a) Each Holder agrees not to make any disposition of all or any
portion of the Shares or Registrable Securities unless and
until:
(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) (A) The transferee has agreed in writing to be
bound by the terms of this Agreement, (B) 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 (C) 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 of such shares under the Securities Act. It is agreed
that the Company will not require opinions of counsel for
transactions made pursuant to Rule 144 except in unusual
circumstances. From and after such time as the Company becomes a
reporting company under Section 13 or Section 15 of the
Exchange Act, the Company will not require a transferee of Shares
or Registrable Securities to agree to be bound by the terms of this
Agreement.
Notwithstanding the provisions of paragraphs (i) and
(ii) above, 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 former partners in
accordance with partnership interests, (B) a corporation to
its stockholders in accordance with their interest in the
corporation, (C) a limited liability company to its members or
former members in accordance with their interest in the limited
liability company, or (D) to the Holder’s affiliates,
related funds or family members or trust for the benefit of an
individual Holder; provided that in each case the transferee
will be subject to the terms of this Agreement to the same extent
as if he were an original Holder hereunder.
(b) Each certificate representing Shares or Registrable
Securities shall (unless otherwise permitted by the provisions of
the Agreement) be stamped or otherwise imprinted with a legend
substantially similar to the following (in addition to any legend
required under applicable state securities laws, the
Company’s Bylaws, or as provided elsewhere in this
Agreement):
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"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
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(c) The Company shall be obligated to reissue promptly
unlegended certificates at the request of any holder thereof if the
holder shall have obtained an opinion of counsel (which counsel may
be counsel to the Company) reasonably acceptable to the Company to
the effect that the securities proposed to be disposed of may
lawfully be so disposed of without registration, qualification or
legend.
(d) Any legend endorsed on an instrument pursuant to
applicable state securities laws and the stop-transfer instructions
with respect to such securities shall be removed upon receipt by
the Company of an order of the appropriate blue sky authority
authorizing such removal.
2.2 Requested Registration.
(a) Request for Registration. Subject to the conditions
of this Section 2.2, at any time after October 21, 2008,
if an Initial Offering has not occurred, the holders of fifty
percent (50%) of the Registrable Securities held by the Series
D Investors and the Series C Investors, in the aggregate, will have
the right to have the Company effect one (1) registration of
their Shares on Form S-1 pursuant to this Section 2.2 and at
any time following 180 days after the Company’s Initial
Offering, the holders of the Shares, by action of the holders of a
majority of the Registrable Securities, will be entitled to have
the Company effect three (3) registrations on Form S-1
pursuant to this Section 2.2 (in each instance, the
"Initiating Holders").
(b) Notices; Company Action. In the case of each
requested registration contemplated by Section 2.2(a), if the
Company shall receive from Initiating Holders a written request
that the Company effect any registration, qualification or
compliance with respect to shares of Registrable Securities,
provided that the anticipated aggregate offering price, net
of underwriting discounts and commissions, would exceed three
million dollars ($3,000,000) the Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders then
entitled to such a requested registration; and
(ii) as soon as practicable, use its best efforts to
effect such registration, qualification or compliance (including,
without limitation, 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 Registrable Securities of any Holder or Holders then
entitled to such a requested registration joining in such request
as are specified in a written request received by the Company
within twenty (20) days after receipt of such written notice
from the Company.
(c) Limitations. Notwithstanding the foregoing,
the Company shall not be obligated to take any action pursuant to
this Section 2.2:
(i) 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;
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(ii) During the period starting with
the date sixty (60) days prior to the Company’s
estimated date of filing of, and ending on the date one hundred
eighty (180) days immediately following the effective date of,
any registration statement subject to Section 2.3 hereof
(other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan),
provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement
to become effective;
(iii) If the Company shall furnish to such Initiating
Holders a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors
it would be seriously 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 2.2 shall be
deferred for a period not to exceed one hundred twenty
(120) days from the date of receipt of written request from
the Initiating Holders, provided that the Company may not
exercise this deferral right more than once per twelve
(12) month period; or
(iv) If such registration, qualification or compliance is
not proposed to be part of a firm commitment underwritten public
offering with underwriters reasonably acceptable to the
Company.
Subject to the foregoing clauses (i) through (iv), 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.
(d) Underwriting. In the event of a registration
pursuant to Section 2.2, the Company shall advise the Holders
entitled to and as part of the notice given pursuant to
Section 2.2(b)(i) that the right of any Holder to registration
pursuant to this Section 2.2 shall be conditioned upon such
Holder’s participation in the underwriting arrangements
required by this Section 2.2, and the inclusion of such
Holder’s Registrable Securities in the underwriting to the
extent requested shall be limited to the extent provided
herein.
The Company shall (together with all Holders proposing to
distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by the Holders of a
majority of all Registrable Securities held by the Initiating
Holders, but subject to the Company’s reasonable approval.
Notwithstanding any other provision of this Section 2.2, if
the managing underwriter advises the Initiating Holders in writing
that marketing factors require a limitation of the number of shares
to be underwritten, then the Company shall so advise all Holders
entitled to include their Registrable Securities in such
registration and the number of shares of Registrable Securities
that may be included in the registration and underwriting shall be
allocated among all such Holders (including the Initiating Holders)
in proportion, as nearly as practicable, to the respective total
purchase prices paid to the Company for such Registrable Securities
held by such Holders (including the Initiating Holders) at the time
of filing the registration statement. No Registrable Securities
excluded from the underwriting by reason of the underwriter’s
marketing limitation shall be included in such
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registration. To facilitate the allocation of
shares in accordance with the above provisions, the Company or the
underwriters may round the number of shares allocated to any Holder
to the nearest one hundred (100) shares.
If any Holder disapproves of the terms of the underwriting, such
person may elect to withdraw therefrom by written notice to the
Company, the managing underwriter and the Initiating Holders. The
Registrable Securities and/or other securities so withdrawn shall
also be withdrawn from registration, and such Registrable
Securities shall not be transferred in a public distribution prior
to one hundred eighty (180) days after the effective date of
such registration, or such other shorter period of time as the
underwriters may require.
2.3 Piggyback Registrations. The Company shall
notify all Holders in writing at least twenty (20) days prior
to the filing of any and all registration statements under the
Securities Act for purposes of a public offering of securities of
the Company (including, but not limited to, registration statements
relating to secondary offerings of securities of the Company, but
excluding registration statements relating to employee benefit
plans or with respect to corporate reorganizations or other
transactions under Rule 145 of the Securities Act) and will
afford each such Holder an opportunity to include in such
registration statement all or part of such Registrable Securities
held by such Holder. Each Holder desiring to include in any such
registration statement all or any part of the Registrable
Securities held by it shall, within fifteen (15) days after
the above-described notice from the Company, so notify the Company
in writing. Such notice shall state the intended method of
disposition of the Registrable Securities by such Holder. If a
Holder decides not to include all of its Registrable Securities in
any registration statement thereafter filed by the Company, such
Holder shall nevertheless continue to have the right to include any
Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect
to offerings of its securities, all upon the terms and conditions
set forth herein.
(a) Underwriting. If the registration statement
under which the Company gives notice under this Section 2.3 is
for an underwritten offering, the Company shall so advise the
Holders. In such event, the right of any such Holder to be included
in a registration pursuant to this Section 2.3 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. All
Holders proposing to distribute their Registrable Securities
through such underwriting shall enter into an underwriting
agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any
other provision of the Agreement, if the underwriter determines in
good faith that marketing factors require a limitation of the
number of shares to be underwritten, the number of shares that may
be included in the underwriting shall be allocated, first, to the
Company; second, to the Holders on a pro rata basis based on the
total purchase price paid to the Company for the Registrable
Securities held by the Holders; and third, to any stockholder of
the Company (other than a Holder) on a pro rata basis. No such
reduction shall (i) reduce the securities being offered by the
Company for its own account to be included in the registration and
underwriting or (ii) reduce the amount of securities of the
selling Holders included in the registration below twenty-five
percent (25%) of the total amount of securities included in
such registration, unless such offering is the Initial Offering and
such registration does not include shares of any other selling
stockholders, in which event any or all of the Registrable
Securities of the Holders may be excluded in accordance with the
immediately preceding sentence.
(b) Right To Terminate Registration. The Company
shall have the right to terminate or withdraw any registration
initiated by it under this Section 2.3 prior to the
effectiveness
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of such registration whether or not any Holder
has elected to include securities in such registration. The
Registration Expenses of such withdrawn registration shall be borne
by the Company in accordance with Section 2.5
hereof.
2.4 Form S-3 Registration. In case the Company
shall receive from any Holder or Holders of Shares a written
request or requests that the Company effect a registration on Form
S-3 (or any successor to Form S-3) or any similar short-form
registration statement and any related qualification or compliance
with respect to all or a part of the Registrable Securities owned
by such Holder or Holders of Shares (the "Initiating Holders"), the
Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all
other Holders of Registrable Securities; and
(b) as soon as practicable, effect such registration and
all such qualifications and compliances as may be so requested and
as would permit or facilitate the sale and distribution of all or
such portion of such Initiating Holder’s or Holders’
Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a
written request given within twenty (20) days after mailing of
such written notice from the Company; provided, however ,
that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this
Section 2.4:
(i) if Form S-3 (or any successor or similar form) is not
available for such offering by the Initiating Holders, or
(ii) if the Initiating Holders, together with the holders
of any other securities of the Company entitled to inclusion in
such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public of
less than Five Hundred Thousand Dollars ($500,000), or
(iii) if the Company shall furnish to the Initiating
Holders a certificate signed by the Chairman of the Board of
Directors of the Company stating that in the good faith judgment of
the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such Form S-3
Registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than ninety
(90) days after receipt of the request of the Initiating
Holder or Holders under this Section 2.4; provided ,
that such right to delay a request shall be exercised by the
Company not more than once in any twelve (12) month period,
or
(iv) in any twelve (12) month period, if the Company
has already effected two (2) registrations on Form S-3 for any
Holders pursuant to this Section 2.4 during such twelve
(12) month period, or
(v) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration,
qualification or compliance.
(c) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their
request made pursuant to this Section 2.4 and the Company
shall include such information in the
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written notice referred to in
Section 2.4(a). In such event, the right of any Holder to
include its Registrable Securities in such registration shall be
conditioned upon such Holder’s participation in such
underwriting and the inclusion of such Holder’s Registrable
Securities in the underwriting (unless otherwise mutually agreed by
the Holders of a majority of the Registrable Securities held by the
Initiating Holders and such Holder) to the extent provided herein.
All Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for
such underwriting by a majority in interest of the Initiating
Holders (which underwriter or underwriters shall be reasonably
acceptable to the Company). Notwithstanding any other provision of
this Section 2.4, if the underwriter advises the Company that
marketing factors require a limitation of the number of securities
to be underwritten (including Registrable Securities) then the
Company shall so advise all Holders of Registrable Securities which
would otherwise be underwritten pursuant hereto, and the number of
shares that may be included in the underwriting shall be allocated
to the Holders of such Registrable Securities on a pro rata basis
based on the total purchase price paid to the Company for the
Registrable Securities held by all such Holders (including the
Initiating Holders). Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from the
registration.
(d) Subject to the foregoing, the Company shall file a
Form S-3 registration statement covering the Registrable Securities
and other securities so requested to be registered as soon as
practicable after receipt of the request or requests of the holders
of Shares.
2.5 Expenses Of Registration. Except as
specifically provided herein, all Registration Expenses incurred in
connection with any registration under Section 2.2,
Section 2.3 or Section 2.4 herein shall be borne by the
Company. All Selling Expenses incurred in connection with any
registrations hereunder, shall be borne by the holders of the
securities so registered pro rata on the basis of the number of
shares so registered. The Company shall not, however, be required
to pay for expenses of any registration proceeding begun pursuant
to Section 2.4, the request of which has been subsequently
withdrawn by the Initiating Holders unless (a) the withdrawal
is based upon material adverse information concerning the Company
of which the Initiating Holders were not aware at the time of such
request or (b) the holders of a majority of the Registrable
Securities agree to forfeit their right to one requested
registration pursuant to Section 2.4, as applicable, in which
event such right shall be forfeited by all holders of Registrable
Securities. If the Holders are required to pay the Registration
Expenses, such expenses shall be borne by the holders of securities
(including Registrable Securities) requesting such registration in
proportion to the number of shares for which registration was
requested. If the Company is required to pay the Registration
Expenses of a withdrawn offering pursuant to clause (a) above,
then the holders of Shares shall not forfeit their rights pursuant
to Section 2.4.
2.6 Obligations Of The Company. Whenever required
to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use all
reasonable efforts to cause such registration statement to become
effective, and, upon the request of the Holders of a majority of
the Registrable Securities registered thereunder, keep such
registration statement effective for up to ninety (90) days
or, if earlier, until the Holder or Holders have completed the
distribution related thereto; provided, however , that at
any time, upon written notice to the participating Holders and for
a period not to exceed sixty (60) days thereafter (the
"Suspension Period"), the Company may delay the filing or
effectiveness of any registration statement or suspend the use or
effectiveness of any registration statement (and the
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Initiating Holders hereby agree not to offer or
sell any Registrable Securities pursuant to such registration
statement during the Suspension Period) if an executive officer of
the Company reasonably determines (which determination shall be
confirmed by the Company’s Board of Directors within
forty-eight (48) hours) that the Company may, in the absence
of such delay or suspension hereunder, be required under state or
federal securities laws to disclose any corporate development the
disclosure of which could reasonably be expected to have a serious
adverse effect upon the Company, its stockholders, a potentially
significant transaction or event involving the Company, or any
negotiations, discussions, or proposals directly relating thereto.
No more than two (2) such Suspension Periods shall occur in
any twelve (12) month period. In the event that the Company
shall exercise its rights under the preceding sentence, the
applicable time period during which the registration statement is
to remain effective shall be extended by a period of time equal to
the duration of the Suspension Period. If so directed by the
Company, the Initiating Holders shall use their best efforts to
deliver to the Company (at the Company’s expense) all copies,
other than permanent file copies then in such Initiating
Holders’ possession, of the prospectus relating to such
Registrable Securities current at the time of receipt of such
notice. The Company shall not be required to file, cause to become
effective or maintain the effectiveness of any registration
statement that contemplates a distribution of securities on a
delayed or continuous basis pursuant to Rule 415 under the
Securities Act.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used
in connection with such registration statement 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.
(c) Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as
they may reasonably request in order to facilitate the disposition
of Registrable Securities owned by them.
(d) Use all reasonable efforts to register and qualify
the securities covered by such registration statement under such
other securities or Blue Sky laws of such jurisdictions as shall be
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.
(e) 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
underwriters of such offering. Each Holder participating in such
underwriting shall also enter into and perform its obligations
under such an agreement.
(f) Notify each Holder 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 in the light of the
circumstances then existing. The Company will use reasonable
efforts to amend or supplement such prospectus promptly in order to
cause such prospectus not to include 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 in light of the circumstances then existing.
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(g) Use its best efforts to furnish on
the date that such Registrable Securities are delivered to the
underwriters for sale, if such securities are being sold through
underwriters, (i) an opinion, dated as of 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 as of 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 if permitted by applicable accounting standards, to the
Holders requesting registration of Registrable Securities.
2.7 Termination of Registration Rights. All
registration rights granted under this Section 2 shall
terminate and be of no further force and effect three
(3) years after the date of the Company’s Initial
Offering. In addition, a Holder’s registration rights shall
expire if (a) the Company has completed its Initial Offering
and is subject to the provisions of the Exchange Act; (b) such
Holder (together with its affiliates) holds less than one percent
(1%) of the Company’s outstanding Common Stock (treating
all shares of convertible Preferred Stock on an as converted basis)
and (c) all Registrable Securities held by such Holder (and
its affiliates, partners and former partners) may be sold under
Rule 144 during any ninety (90) day period.
2.8 Delay of Registration; Furnishing Information.
(a) No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration
as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 2.
(b) It shall be a condition precedent to the obligations
of the Company to take any action pursuant to Section 2.2, 2.3
or 2.4 that the selling Holders shall furnish to the Company such
information regarding themselves, the Registrable Securities held
by them and the i
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