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Inv. Rights
Agmt
Exhibit 4.22
INVESTOR RIGHTS
AGREEMENT
This INVESTOR RIGHTS AGREEMENT (this " Agreement "),
dated as of November 28, 2006, is by and between SONORAN ENERGY,
INC., a corporation duly formed and validly existing under the laws
of the State of Washington (the " Company "), and NGP
Capital Resources Company, a Maryland corporation (the "
Investor "), for itself and on behalf of each Holder (as
defined below).
The Company has issued to the Investor warrants (the "
Warrants ") that entitle the Investor to purchase Common
Stock (as defined below) of the Company, upon the terms and
conditions set forth in the Warrants. In connection
therewith, the Company has agreed to grant to the Investor and the
Holders certain rights as described in this Agreement. This
Agreement is the "Investor Rights Agreement" referred to in the
Warrants. Accordingly, the parties hereto agree as
follows:
SECTION 1.
Definitions .
Each capitalized term used herein but not otherwise expressly
defined in this Agreement shall have the meaning ascribed thereto
in the Warrant Agreement. As used in this Agreement the
following terms have the following respective meanings:
" Additional 3.01 Holders " is defined in Section
3.01(a) .
" Agreement " is defined in the preamble .
" Articles of Incorporation " means the Articles of
Incorporation of the Company, dated as of [
], and filed with the
Secretary of State of the State of Washington on [
] as
hereafter amended, modified, restated or replaced from time to
time.
" Bylaws " means the Bylaws of the Company, dated as of
[
], as
hereafter amended, modified, restated or replaced from time to
time.
" Commission " means the Securities and Exchange
Commission, or any successor or similar governmental agency or
authority.
" Common Stock " shall mean authorized shares of Common
Stock of the Company, par value $0.165 per share, as constituted on
the date hereof, and any stock into which such Common Stock may
thereafter be converted or changed, and also shall include any
other stock of the Company of any other class that is not preferred
as to dividends or distributions in liquidation over any other
class of any other stock of the Company.
" Company " is defined in the preamble .
" Company Securities " is defined in Section 2(b)
.
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" Convertible Securities " means
evidences of indebtedness, units, interests or other securities
(including the Warrants) that are convertible into or exercisable
or exchangeable for, with or without payment of additional
consideration, Common Stock, either immediately or upon a specified
date or the happening of a specified event.
" Demand Holders " is defined in Section 3.02
.
" Demand Registration " means a request for registration
of Registrable Securities pursuant to Section 3.01
.
" Disadvantageous Condition " is defined in Section
3.01(a) .
" Exchange Act " means the Securities Exchange Act of
1934, as amended, or any similar Federal statute, and the rules and
regulations of the Commission thereunder, as in effect from time to
time.
" Holder " and " Holders " means each of the
Investor and any other Person to whom the Investor transfers all or
a portion of its Warrant.
" Holders’ Counsel " is defined in Section
4.01(c) .
" Indemnified Party " is defined in
Section 5.03 .
" Indemnifying Party " is defined in
Section 5.03 .
" Insider " means each Shareholder that (a) is a
director, officer, manager or employee of the Company, (b) owns,
either now or at the time of determination, five percent or more of
the outstanding Common Stock on a Fully Diluted Basis, or (c) has
access to inside information regarding the operations or management
of the Company, and in each of the foregoing cases (a), (b) and (c)
any affiliate of any such Shareholder.
" Investor " is defined in the preamble .
" Majority Holders " means, at any time, the Holder or
Holders of at least fifty one percent (51%) of all Registrable
Securities then outstanding.
" Managing Underwriter " means, with respect to any
registration, a nationally-recognized investment banking firm
acting as lead managing underwriter in connection with such
registration.
" NASD " means the National Association of Securities
Dealers, Inc.
" Notice " is defined in Section 2(a)(i) .
" Obligation to Sell Notice " is defined in Section
9.02 .
" Options " means any options or other rights to
subscribe for or to purchase shares of Common Stock or Convertible
Securities.
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" Other Holders " is defined in
Section 2(b) .
" Other Registrable Securities " is defined in
Section 2(b) .
" Other Securities " is defined in Section 2(a)
.
" Person " means any individual, company, association,
joint venture, limited liability company, partnership, trust,
business or other entity or organization, and shall include any
government or political subdivision, or any agency or
instrumentality thereof.
" Proposed Purchaser " is defined in Section
9.01(a) .
" Prospectus " means the prospectus included in a
Registration Statement, including any amendment or prospectus
subject to completion, and any such prospectus as amended or
supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities and,
in each case, by all other amendments and supplements to such
prospectus, including post-effective amendments, and in each case
including all material incorporated by reference therein.
" register ," " registered " and "
registration " refer to a registration of the Common Stock
or any other securities of the Company 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 by the Commission.
" Registrable Securities " means (a) all Warrant Common
Stock, including without limitation any and all Common Stock or
other equity interests of the Company of any class or designation,
or other securities into which such Common Stock may thereafter be
changed or converted, and (b) any additional shares of Common Stock
or other securities of the Company issued or distributed by way of
a distribution in respect of the shares of Common Stock referred to
in clause (a) above or with respect to any reorganization or other
recapitalization, merger, consolidation or otherwise, or acquired
by way of any rights offering or similar offering made in respect
of the shares of Common Stock referred to in clause (a) above.
As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities when (i) a Registration
Statement with respect to the sale of such Registrable Securities
becomes effective under the Securities Act and such Registrable
Securities have been disposed of in accordance with such
Registration Statement, (ii) such securities have been sold
pursuant to Rule 144 or (iii) such Registrable Securities shall
have ceased to be outstanding.
" Registration Expenses " means all expenses incident to
the Company’s performance of or compliance with the
registration requirements set forth in Section 2 and
Section 3 , including, without limitation, all registration,
filing and NASD fees, exchange or national market listing fees, all
fees and expenses of complying with applicable federal and state
laws (including securities or blue sky laws), all word processing,
duplicating and printing expenses, messenger and delivery expenses,
all fees and disbursements of counsel for the Company and of its
independent public
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accountants, including, without limitation,
the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, the
fees and disbursements of one special counsel to the Holders,
premiums and other costs of policies of insurance against
liabilities arising out of the offering of the Registrable
Securities being registered, the fees and expenses of any special
experts, including independent petroleum engineers, retained by the
Company in connection with such offering, the fees and expenses of
any qualified independent underwriter or other independent
appraiser participating in any offering pursuant to the Conduct
Rules of the NASD, all mailing, courier and overnight delivery
charges (except to the extent borne by underwriters), all travel
expenses of the Company’s partners, officers and employees
and any other expenses of the Company in connection with attending
or hosting meetings with prospective purchasers of the offered
securities, and any fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, but excluding
Selling Expenses, if any; provided , that, in any case where
Registration Expenses are not to be borne by the Company, such
expenses shall not include salaries of Company personnel or general
overhead expenses of the Company, auditing fees, premiums or other
expenses relating to liability insurance required by underwriters
of the Company or other expenses for the preparation of financial
statements or other data normally prepared by the Company in the
ordinary course of its business or which the Company would have
incurred in any event.
" Registration Statement " means any registration
statement of the Company that covers an offering or resale of any
of the Registrable Securities, and all amendments and supplements
to any such registration statement, including post-effective
amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference (or deemed incorporated by reference) therein.
" Requisite Holders " means with respect to any
registration of Registrable Securities pursuant to Section
3.01(a) , any Holder or Holders of at least twenty-five percent
(25%) of the Registrable Securities then outstanding.
" Rule 144 " means Rule 144 promulgated by the Commission
under the Securities Act, or any successor rule thereto, as amended
from time to time.
" Rule 144A " means Rule 144A promulgated under the
Securities Act, or any successor rule thereto, as amended from time
to time.
" Sale Notice " is defined in Section 9.01(a)
.
" Securities Act " means the Securities Act of 1933, as
amended, or any similar Federal statute, and the rules and
regulations of the Commission thereunder, as in effect from time to
time.
" Selling Expenses " means underwriting discounts and
commissions, together with any transfer taxes relating to
securities registered by the Company.
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" Shareholder " means, at a particular
time of determination, each Person that owns or holds Common Stock
in accordance the Bylaws, the Articles of Incorporation and
applicable law, each in its capacity as a shareholder of the
Company.
" Transferring Insider " is defined in Section
9.01(a) .
" Warrant Common Stock " means the Common Stock issued or
issuable upon exercise of the Warrants.
" Withdrawing Holder " is defined in
Section 3.02 .
SECTION 2.
Piggyback Registration .
(a)
Right to Include Registrable Securities . If at any
time or from time to time after the date hereof the Company
proposes to register any of its securities for its own account or
for the account of a security holder or holders (other than for the
Holders) (the " Other Securities "), then the Company
shall:
(i)
at least thirty (30) days before the filing of the Registration
Statement related thereto, promptly give to each Holder written
notice (" Notice ") of its intention to register such
securities and of the rights of the Holders under this Section
2(a)(i) ; and
(ii)
upon the written request of any such Holder made within thirty
(30) days after the receipt of any such Notice (which request shall
specify the Registrable Securities intended to be disposed of by
such Holder and the intended method of distribution thereof), the
Company shall use its best efforts to effect the registration under
the Securities Act of all Registrable Securities that the Company
has been so requested to register by the Holders thereof, to the
extent required to permit the disposition (in accordance with such
intended methods thereof) of all Registrable Securities so
requested to be registered by the Holders thereof; provided
, that if, at any time after giving Notice of its intention to
register any securities and prior to the effective date of the
Registration Statement filed in connection with such registration,
the Company determines for any reason not to register or to delay
registration of such securities, the Company shall give Notice of
such determination to each Holder and: (A) in the case of a
determination not to register, shall be relieved of its obligation
to register any Registrable Securities in connection with such
registration (but not from its obligation to pay all Registration
Expenses in connection therewith), without prejudice, however, to
the rights of any Holder or Holders entitled to do so to request
that such registration be effected as a registration pursuant to
Section 3.01(a) , and (B) in the case of a determination to
delay registering, shall be permitted to delay registering any
Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected
under this Section 2(a) shall be deemed to have been
effected pursuant to Section 3.01(a) or shall relieve the
Company of its obligation to effect any registration pursuant to
Section 3.01(a) .
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(b)
Priority in Piggyback Registrations . If a
registration pursuant to Section 2(a) involves an
underwritten offering of the securities so being registered,
whether or not for sale for the account of the Company, and the
Managing Underwriter advises the Company in writing that, in such
firm’s good faith view, the inclusion of all or a part of
such Registrable Securities in such registration would be likely to
have an adverse effect upon the price, timing or distribution of
the offering and sale of the Other Securities then contemplated,
the Company shall (x) provide Notice to each of the Holders
whose Registrable Securities have been requested to be included
therein of such communication from the Managing Underwriter, and of
the effect thereof on the ability of such Holders to include their
Registrable Securities in such registration and (y) include in
such registration: (i) first , all Other Securities
the Company proposes to sell for its own account (" Company
Securities "), and (ii) second , up to the full
number of Registrable Securities held by Holders and the full
number of securities (the " Other Registrable Securities ")
held by holders of Other Securities (other than the Company) (the "
Other Holders ") that are eligible to be included in such
registration, in each case who have requested that their
Registrable Securities and/or or Other Registrable Securities, as
the case may be, be included in such registration in excess of the
number of Company Securities to be sold in such offering which, in
the good faith view of the Managing Underwriter, can be so sold
without so adversely affecting such offering in the manner
described above; provided that if such number is less than
the full number of such Registrable Securities and/or or Other
Registrable Securities, as the case may be, such number shall be
allocated pro rata among such Holders and such Other Holders on the
basis of the relative percentage of Registrable Securities and/or
or Other Registrable Securities, as the case may be, then held by
each such Holder and/or Other Holder (with any number in excess of
a Holder’s or Other Holder’s request being reallocated
among the requesting Holders and Other Holders in a like manner);
and provided further that if such Managing
Underwriter advises the Company in writing that less than all of
such Registrable Securities and/or or Other Registrable Securities,
as the case may be, should be included in such offering, such
Holders and such Other Holders may withdraw their request for
registration of their Registrable Securities under
Section 2(a) .
(c)
Exceptions . The Company shall not be required to
effect any registration of Registrable Securities under Section
2(a) relating solely to (i) any registration on Form S-8 or any
successor form promulgated under the Securities Act (or any
successor thereto or other comparable form) of securities issuable
under any employee benefit, retirement or similar plan; or (ii) any
registration on Form S-4 or any successor form with respect to a
Rule 145 transaction.
(d)
Number of Piggyback Registration Requests . The number of
requests permitted by Holders pursuant to this
Section 2(d) shall be unlimited.
(e)
Obligations of Company under Section 3.01(a) .
No registration of Registrable Securities effected under
Section 2(a) shall relieve the Company of its
obligation to effect a registration of Registrable Securities
pursuant to Section 3.01(a) .
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Agmt
(f)
Expenses of Registration . The Company shall pay
all Registration Expenses in connection with each registration (or
proposed registration) of Registrable Securities requested pursuant
to this Section 2(f) . Any Selling Expenses shall be
allocated among all Persons on whose behalf securities of the
Company are included in such registration, on the basis of the
respective amounts of the Registrable Securities then being
registered on each such Person’s behalf.
SECTION 3.
Demand Registration .
3.01
Request for Registration .
(a)
If the Company receives from the Requisite Holders on or after
the date that is six (6) months after the date of this Agreement, a
written request that the Company effect the registration under the
Securities Act of all or a portion of the Registrable Securities
(subject to the limitations set forth herein) held by the Requisite
Holders, the Company shall promptly give Notice of the proposed
registration to all Holders. The Company shall thereupon, as
soon as practicable, use its best efforts to effect such
registration under the Securities Act 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 (the " Additional 3.01
Holders ") as are specified in a written request received by
the Company within thirty (30) days after such Notice from the
Company is delivered. Notwithstanding the foregoing, if the
Company furnishes to the Requisite Holders a certified resolution
of the board of managers of the Company stating that in its good
faith judgment after due consideration, it would be seriously
detrimental (a " Disadvantageous Condition ") to the Company
for such a Registration Statement to be maintained effective, or to
be filed and become effective in the near future, and that is it is
therefore essential to defer the filing of such registration
statement, the Company shall be entitled to cause such Registration
Statement to be withdrawn and the effectiveness of such
Registration Statement terminated, or, in the event no Registration
Statement has yet been filed, shall be entitled to defer such
filing subject to the limitation set forth below. Upon
receipt of any certification of a Disadvantageous Condition, such
Requisite Holders shall, if applicable, forthwith discontinue use
of the prospectus contained in such Registration Statement.
Neither the filing nor the effectiveness of any such
Registration Statement may be delayed for a period in excess of
ninety (90) days after receipt of the request of the Requisite
Holders, and the Company may exercise its delay rights on only one
occasion in connection with any registration request under this
Section 3.01(a) or in any twelve-month period. If
requested by Requisite Holders, the Company shall, if any
Registration Statement shall have been withdrawn, at such time as
it is possible or, if later, at the end of the 90-day period
following such withdrawal, file a new Registration Statement
covering the Registrable Securities that were covered by such
withdrawn registration and maintain the effectiveness thereof for
such time as is required under this Agreement.
(b)
Limitations to Demand Registration . The Company
shall not be obligated to effect a registration pursuant to
Section 3.01(a) :
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(i)
after the Company shall have already effected three (3) such
registrations pursuant to Section 3.01(a) ;
provided , that , except as provided in Section
3.01(e) , a registration shall not count as a requested
registration pursuant to Section 3.01(a) for purposes
of this Section 3.01(b)(i) until it has become
effective. A registration requested pursuant to
Section 3.01(a) shall not be deemed to have become
effective (A) unless a Registration Statement with respect to
Registrable Securities has been declared effective and remains
effective until the earlier of (y) the sale of all of the
Registrable Securities registered under such Registration Statement
or (z) a period of at least 180 days; (or with respect to a shelf
Registration Statement, such longer period until all of the
Registrable Securities registered on such shelf Registration
Statement shall have been sold); (B) if, after a Registration
Statement has become effective, such registration is subject to any
stop order, injunction or other order or requirement of the
Commission or other governmental agency or court for any reason; or
(C) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with
such registration are not satisfied or waived, other than as a
result of the voluntary termination of such offering by the
Requisite Holders;
(ii)
within ninety (90) days after a Registration Statement has been
filed and declared effective under the Securities Act with respect
to an underwritten offering in which Holders have been or will be
permitted to include all of their Registrable Securities so
requested to be registered pursuant to Section 2 (which
shall exclude a registration of securities on Form S-8 or otherwise
with respect to an employee benefit, retirement or similar
plan);
(iii)
if the Requisite Holders propose to dispose of Registrable
Securities that may be immediately registered on Form S-3 pursuant
to a request made under Section 3.01(c) below.
(c)
Form S-3 Rights . The registration rights under
this Section 3.01(c) may be exercised on an unlimited number
of occasions with respect to Registration Statements on Form S-3
(or any successor or similar form or forms) pursuant to Rule 415
under the Securities Act or otherwise, if available;
provided that, (i) each such registration covers at least
ten percent (10%) of the Registrable Securities owned by the
applicable Requisite Holders immediately prior to any underwritten
offering of the Company (or, if fewer, all of the Registrable
Securities then owned by such Requisite Holders); and (ii) Notice
shall be delivered to the Company by the Requisite Holders
regarding the Requisite Holders’ election to have the
registration be a shelf registration. The Company shall
comply with the applicable provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by
the shelf Registration Statement in accordance with the intended
methods of disposition by the Holders thereof;
(d)
Company Securities Included . The Company shall
have the right to cause the registration of additional equity
securities for sale for the account of any Person that is not a
Holder (including the Company and any directors, officers or
employees of the
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Company) in any registration of Registrable
Securities requested by the Requisite Holders; provided that
if such Requisite Holders are advised in writing (with a copy to
the Company) by a Managing Underwriter selected pursuant to
Section 3.02 that, in such firm’s good faith view, all
or a part of such additional equity securities cannot be sold and
the inclusion of such additional equity securities or part thereof
in such registration would be likely to have an adverse effect on
the price, timing or distribution of the offering and sale of the
Registrable Securities then contemplated by any Holder comprising a
part of the Requisite Holders, the registration of such additional
equity securities or part thereof shall not be permitted. In
the event that the number of Registrable Securities requested to be
included in a Registration Statement by the Requisite Holders
exceeds the number which, in the good faith view of such Managing
Underwriter, can be sold without adversely affecting the price,
timing, distribution or sale of securities in the offering, the
number shall be allocated pro rata among all of the Requisite
Holders on the basis of the relative number of Registrable
Securities then held by each such Requisite Holder on an
as-converted basis (with any number in excess of a Requisite
Holder’s request reallocated among the remaining Requisite
Holders in a like manner).
(e)
Withdrawn Registration Statement . At any time
after a Registration Statement covering Registrable Securities
becomes effective, the Majority Holders whose Registrable
Securities are covered by such registration may request that the
Company withdraw the Registration Statement. Such requested
registration shall not constitute a request under Section
3.01(a) for purposes of Section 3.01(b)(ii) , except as
provided in this Section 3.01(e) . If the Company
withdraws such requested registration after the filing of the
Registration Statement with the Commission at the request of the
Majority Holders, the Holders shall be deemed to have used one of
their registration rights under Section 3.01(a) for purposes
of Section 3.01(b)(ii) , unless such request of withdrawal
was caused by, or made in response to, (i) a material adverse
effect or similar event related to the business, properties,
condition, prospects or operation of the Company, or (ii) a
material adverse change in the financial markets or the economy;
provided , however , that such withdrawn Registration
Statement shall not count as a requested registration pursuant to
Section 3.01(a ) for purposes of Section 3.01(b)(ii)
if the Company shall have been reimbursed by the Holders whose
Registrable Securities are covered by such registration for all
reasonable out-of-pocket expenses incurred by the Company in
connection with such withdrawn registration.
(f)
Priority in Demand Registrations . If a
registration pursuant to Section 3.01(a) involves an
underwritten offering of the securities so being registered,
whether or not for sale for the account of the Company, and the
Managing Underwriter advises the Company in writing (with a copy to
each Holder requesting registration) that, in such firm’s
reasonable good faith opinion, the number of Registrable Securities
requested to be included in such registration exceeds the number
that can be sold in such offering without having an adverse effect
on such offering (including the price range acceptable to the
Requisite Holders), then (x) the Company shall give Notice to
each Holder whose Registrable Securities have been requested to be
included therein of such communication from the Managing
Underwriter, and of the effect thereof on the ability of such
Holders to include their Registrable Securities in such
registration and
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(y) the Registrable Securities to be
offered for the accounts of the Requisite Holders in such offering
shall be reduced or limited pro rata among the Holders requesting
such registration on the basis of the percentage of the Registrable
Securities held by the Holders that have requested that such
Registrable Securities be included. If the Holders requesting
registration under Section 3.01(a) are unable to sell at
least ninety percent (90%) of the Registrable Securities requested
by such Holders to be included in any registration pursuant to
Section 3.01(a) as a result of the Managing
Underwriter’s cutback pursuant to this Section 3.01(f)
, then such registration shall not count as a requested
registration for purposes of Section 3.01(b)(ii) . In
connection with any registration as to which this Section
3.01(f) shall apply, no securities other than Registrable
Securities shall be covered by such registration.
(g)
Expenses of Registration . Except as otherwise provided
herein, the Company shall pay all Registration Expenses in
connection with any registration (or proposed registration) of
Registrable Securities pursuant to Section 3.01(a) .
Any Selling Expenses in connection with any registration
pursuant to Section 3.01(a) shall be allocated among all
Persons on whose behalf securities of the Company are included in
such registration, on the basis of the respective amounts of the
Registrable Securities then being registered on each such
Person’s behalf.
3.02
Requested Underwritten Registration . If the
Requisite Holders requesting registration pursuant to Section
3.01(a) elect to have the distribution of the Registrable
Securities covered by such request to be by means of an
underwritten offering, the Holders of a majority of such
Registrable Securities shall so advise the Company as a part of the
request made pursuant to this Section 3.02 , and shall,
upon consultation with the Company, select the Managing
Underwriter, as well as counsel for the Requisite Holders, with
respect to such registration. The Company, the Requisite
Holders and the Additional 3.01 Holders shall enter into an
underwriting agreement in customary form with the Managing
Underwriter(s) selected for such underwritten offering (it being
understood that (i) all expenses customarily paid for by the issuer
of securities pursuant to such an underwriting agreement shall be
paid for by the Company, and (ii) all indemnification
obligations which are customarily those of the issuer of securities
under such underwriting agreement shall be the obligations of the
Company). If any Holder that is a Requisite Holder or an
Additional 3.01 Holder (collectively, the " Demand Holders
") disapproves of the terms of a proposed underwritten offering
(the " Withdrawing Holder "), the Withdrawing Holder may
elect to withdraw therefrom by notice to the Company and the
Managing Underwriter(s); and each of the remaining Demand Holders
shall be entitled to increase the number of Registrable Securities
being registered to the extent of the Registrable Securities
withdrawn by the Withdrawing Holder in the proportion that the
percentage of Registrable Securities being registered by each such
remaining Demand Holder bears to the aggregate percentage of
Registrable Securities being registered by all such remaining
Demand Holders; provided , however , that the
requirements contained in Section 3.01(a)(i) shall then
be deemed met.
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SECTION 4.
Registration Procedures .
4.01
If and when the Company is required to effect the registration
of any Registrable Securities under the Securities Act as provided
in Section 2 and Section 3 , the Company shall use
its best efforts to effect or cause to be effected the registration
of the Registrable Securities under the Securities Act to permit
the sale of such Registrable Securities by the Holder or Holders in
accordance with the Holder or Holders’ intended method or
methods of distribution, and the Company shall:
(a)
prepare and, as soon as possible thereafter or in any event no
later than thirty (30) days after the end of the period within
which requests for registration may be given to the Company, file
with the Commission the requisite Registration Statement with
respect to such Registrable Securities and thereafter use its best
efforts to cause such Registration Statement to become and remain
effective; provided , that the Company may discontinue any
registration of its securities that are not Registrable Securities
(and, under the circumstances specified in
Section 2(a)(ii) , its securities that are Registrable
Securities) at any time prior to the effective date of the
Registration Statement relating thereto;
(b)
(i) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used
in connection therewith as may be necessary to keep such
Registration Statement effective until all of such Registrable
Securities are sold in accordance with the intended distribution of
such Registrable Securities; (ii) cause each Prospectus contained
therein to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424; and (iii)
comply with the provisions of the Securities Act with respect to
the disposition of all Registrable Securities covered by each
Registration Statement, until all of such Registrable Securities
have been disposed of in accordance with the intended methods of
disposition by the Holder or Holders thereof;
(c)
furnish, at least ten (10) business days before filing a
Registration Statement or a Prospectus relating thereto with the
Commission, to each Holder covered by such Registration Statement
(and one counsel selected by the Holders of the Registrable
Securities requesting such registration (the " Holders’
Counsel ")) such number of conformed copies of such
Registration Statement that registers such Registrable Securities,
and of each such amendment and supplement thereto (in each case
including, without limitation, all exhibits); such number of copies
of the Prospectus contained in such Registration Statement
(including, without limitation, each preliminary Prospectus and any
summary Prospectus); and any other Prospectus filed with the
Commission under Rule 424 under the Securities Act, in conformity
with the requirements of the Securities Act, and such other
documents as such Holder may reasonably request and the Company
hereby consents to the use of the Prospectus, including each
preliminary Prospectus, by the Holders of Registrable Securities,
if any, in connection with the offering and sale of the Registrable
Securities covered by any such Prospectus; provided , that
the Company shall not file any part thereof to which any such
Holder shall have reasonably objected on the grounds that such
amendment or
Inv. Rights
Agmt
supplement does not comply in all material
respects with the requirements of the Securities Act or of the
rules or regulations thereunder;
(d)
notify in writing the Holders’ Counsel (i) of the receipt
by the Company of any notification with respect to any comments by
the Commission with respect to such Registration Statement or
Prospectus or any amendment or supplement thereto, or any request
by the Commission for the amending or supplementing thereof or for
addi
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