EXHIBIT
10.2
INVESTOR RIGHTS
AGREEMENT
This Investor Rights
Agreement (this “ Agreement ”) is made and
entered into as of October 19, 2009 by and among Alfacell
Corporation, a Delaware corporation (the “ Company
”), and the several purchasers signatory hereto (each a
“ Purchaser ” and collectively, the “
Purchasers ”).
This Agreement is made
pursuant to the Securities Purchase Agreement, dated as of the date
hereof between the Company and each Purchaser (the “
Purchase Agreement ”).
NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Company and each of
the Purchasers agree as follows:
1.
Definitions . Capitalized terms used and
not otherwise defined herein that are defined in the Purchase
Agreement shall have the meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms
shall have the following meanings:
“ Advice
” has the meaning set forth in Section 6(d)
.
“
Affiliate ” means, with respect to any person, any
other person which directly or indirectly controls, is controlled
by, or is under common control with, such person.
“
Agreement ” has the meaning set forth in the
Preamble.
“ Business
Day ” means a day, other than a Saturday or Sunday, on
which banks in New York City are open for the general transaction
of business.
“ Closing
” has the meaning set forth in the Purchase
Agreement.
“ Closing
Date ” has the meaning set forth in the Purchase
Agreement.
“
Commission ” means the Securities and Exchange
Commission.
“ Common
Stock ” means the common stock of the Company, par value
$0.001 per share, and any securities into which such common stock
may hereinafter be reclassified.
“ Company
” has the meaning set forth in the Preamble.
“Conversion
Shares” means the shares of Common Stock
issued or issuable upon conversion of the Notes.
“ Effective
Date ” means the date that the Registration Statement
filed pursuant to Section 2(a) is first declared effective
by the Commission.
“
Effectiveness Deadline ” means, with respect to the
Initial Registration Statement or the New Registration Statement,
the one hundred and eightieth (180 th ) calendar day
following the Closing (or, in the event the Commission reviews and
has written comments to the Initial Registration Statement or the
New Registration Statement, the two hundred and tenth (210
th ) calendar day following the Closing); provided,
however , that if the Company is notified by the Commission
that the Initial Registration Statement or the New Registration
Statement will not be reviewed or is no longer subject to
further
review and comments,
the Effectiveness Deadline as to such Registration Statement shall
be the fifth (5 th ) Trading Day following the date on
which the Company is so notified if such date precedes the dates
otherwise required above; provided, further , that if the
Effectiveness Deadline falls on a Saturday, Sunday or other day
that the Commission is closed for business, the Effectiveness
Deadline shall be extended to the next Business Day on which the
Commission is open for business. With respect to any
Remainder Registration Statement, the Effectiveness Deadline shall
be the 90th calendar day following the date that the Company is
eligible to file such Remainder Registration Statement pursuant to
SEC Guidance (or, in the event the Commission reviews and has
written comments to the Remainder Registration Statement, the 120th
calendar day following the date that the Company is eligible to
file such Remainder Registration Statement pursuant to SEC
Guidance); provided, however, that if the Company is notified by
the Commission that the Remainder Registration Statement will not
be reviewed or is no longer subject to further review and comments,
the Effectiveness Deadline as to such Remainder Registration
Statement shall be the fifth (5th) Trading Day following the date
on which the Company is so notified if such date precedes the dates
otherwise required above; provided, further, that if the
Effectiveness Deadline falls on a Saturday, Sunday or other day
that the Commission is closed for business, the Effectiveness
Deadline shall be extended to the next Business Day on which the
Commission is open for business.
“
Effectiveness Period ” has the meaning set forth in
Section 2(b) .
“ Event
” has the meaning set forth in Section 2(c)
.
“ Event
Date ” has the meaning set forth in Section 2(c)
.
“ Exchange
Act ” means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated
thereunder.
“ Filing
Deadline ” means, with respect to the Initial
Registration Statement required to be filed pursuant to Section
2(a) , the one hundred twentieth (120 th ) calendar
day following the Closing, provided, however , that if the
Filing Deadline falls on a Saturday, Sunday or other day that the
Commission is closed for business, the Filing Deadline shall be
extended to the next business day on which the Commission is open
for business. With respect to any Remainder Registration
Statement, the Filing Deadline shall be the 30th calendar day
following the date that the Company is eligible to file such
Remainder Registration Statement pursuant to SEC Guidance,
provided, however, that if the Filing Deadline falls on a Saturday,
Sunday or other day that the Commission is closed for business, the
Filing Deadline shall be extended to the next business day on which
the Commission is open for business.
“ Holder
” or “ Holders ” means the holder or
holders, as the case may be, from time to time of Registrable
Securities.
“ Indemnified
Party ” has the meaning set forth in Section 5(c)
.
“ Indemnifying
Party ” has the meaning set forth in Section 5(c)
.
“ Initial
Registration Statement ” means the initial Registration
Statement filed pursuant to Section 2(a) of this
Agreement.
“Liquidated
Damages” has the meaning set forth in
Section 2(c) .
“Losses
” has the meaning
set forth in Section 5(a) .
“ New
Registration Statement ” has the meaning set forth in
Section 2(a) .
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“Notes”
means the Notes issued
pursuant to the Purchase Agreement.
“ Person
” means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
“ Principal
Market ” means the Trading Market on which the Common
Stock is primarily listed on and quoted for trading, which, as of
the Closing Date, shall be the OTC Bulletin Board.
“
Proceeding ” means an action, claim, suit,
investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether
commenced or threatened.
“
Prospectus ” means the prospectus included in a
Registration Statement (including, without limitation, a prospectus
that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Securities
covered by a Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments,
and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“ Purchase
Agreement ” has the meaning set forth in the
Recitals.
“
Purchaser ” or “ Purchasers ” has
the meaning set forth in the Preamble.
“ Registrable
Securities ” means all of (i) the Conversion Shares, (ii)
the Warrant Shares and (iii) any securities issued or issuable upon
any stock split, dividend or other distribution, recapitalization
or similar event with respect to the Conversion Shares or Warrant
Shares, provided , that the Holder has completed and
delivered to the Company a Selling Stockholder Questionnaire; and
provided, further , that with respect to a particular
Holder, such Holder’s Conversion Shares and Warrant Shares
shall cease to be Registrable Securities upon the earliest to occur
of the following: (A) a sale of such shares pursuant to a
Registration Statement or Rule 144 under the Securities Act (in
which case, only such security sold by the Holder shall cease to be
a Registrable Security); or (B) such shares becoming eligible for
resale by the Holder under Rule 144 without the requirement for the
Company to be in compliance with the current public information
required thereunder and without volume or manner-of-sale
restrictions, pursuant to a written opinion letter to such effect,
addressed, delivered and acceptable to the Transfer
Agent.
“ Registration
Statements ” means any one or more registration
statements of the Company filed under the Securities Act that
covers the resale of any of the Registrable Securities pursuant to
the provisions of this Agreement (including without limitation the
Initial Registration Statement, the New Registration Statement and
any Remainder Registration Statements), amendments and supplements
to such Registration Statements, including post-effective
amendments, all exhibits and all material incorporated by reference
or deemed to be incorporated by reference in such Registration
Statements.
“ Remainder
Registration Statement ” has the meaning set forth in
Section 2(a) .
“ Rule 144
” means Rule 144 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such
Rule.
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“ Rule 415
” means Rule 415 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such
Rule.
“ Rule 424
” means Rule 424 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such
Rule.
“ SEC
Guidance ” means (i) any publicly-available written or
oral guidance, comments, requirements or requests of the Commission
staff and (ii) the Securities Act.
“ Securities
Act ” means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
“ Selling
Stockholder Questionnaire ” means a questionnaire in the
form attached as Annex A hereto, or such other form of
questionnaire as may reasonably be adopted by the Company from time
to time.
“ Trading
Day ” means (i) a day on which the Common Stock is listed
or quoted and traded on its Principal Market (other than the OTC
Bulletin Board), or (ii) if the Common Stock is not listed on a
Trading Market (other than the OTC Bulletin Board), a day on which
the Common Stock is traded in the over-the-counter market, as
reported by the OTC Bulletin Board, or (iii) if the Common Stock is
not quoted on any Trading Market, a day on which the Common Stock
is quoted in the over-the-counter market as reported in the
“pink sheets” by Pink Sheets LLC (or any similar
organization or agency succeeding to its functions of reporting
prices); provided , that in the event that the Common Stock
is not listed or quoted as set forth in (i), (ii) and (iii) hereof,
then Trading Day shall mean a Business Day.
“ Trading
Market ” means whichever of the New York Stock Exchange,
the American Stock Exchange, the NASDAQ Global Select Market, the
NASDAQ Global Market, the NASDAQ Capital Market or OTC Bulletin
Board on which the Common Stock is listed or quoted for trading on
the date in question.
“ Warrants
” means the Warrants issued pursuant to the Purchase
Agreement.
“ Warrant
Shares ” means the shares of Common Stock issued or
issuable upon exercise of the Warrants.
2.
Registration
.
(a)
On or prior to the
Filing Deadline, the Company shall prepare and file with the
Commission a Registration Statement covering the resale of all of
the Registrable Securities not already covered by an existing and
effective Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 or, if Rule 415 is not
available for offers and sales of the Registrable Securities, by
such other means of distribution of Registrable Securities as the
Holders may reasonably specify (the “ Initial Registration
Statement ”). The Initial Registration Statement
shall be on Form S-3 (except if the Company is then ineligible to
register for resale the Registrable Securities on Form S-3, in
which case such registration shall be on such other form available
to register for resale the Registrable Securities as a secondary
offering) subject to the provisions of Section 2(e) .
Notwithstanding the registration obligations set forth in
this Section 2 , in the event the Commission informs the
Company that all of the Registrable Securities cannot, as a result
of the application of Rule 415, be registered for resale
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as a secondary offering
on a single registration statement, the Company agrees to promptly
(i) inform each of the Holders thereof and use its commercially
reasonable efforts to file amendments to the Initial Registration
Statement as required by the Commission and/or (ii) withdraw the
Initial Registration Statement and file a new registration
statement (a “ New Registration Statement ”), in
either case covering the maximum number of Registrable Securities
permitted to be registered by the Commission, on Form S-3 or such
other form available to register for resale the Registrable
Securities as a secondary offering; provided, however , that
prior to filing such amendment or New Registration Statement, the
Company shall be obligated to use its commercially reasonable
efforts to advocate with the Commission for the registration of all
of the Registrable Securities in accordance with the SEC Guidance,
including without limitation, the Manual of Publicly Available
Telephone Interpretations D.29. Notwithstanding any other provision
of this Agreement and subject to the payment of liquidated damages
in Section 2(c) , if any SEC Guidance sets forth a
limitation of the number of Registrable Securities permitted to be
registered on a particular Registration Statement as a secondary
offering (and notwithstanding that the Company used diligent
efforts to advocate with the Commission for the registration of all
or a greater number of Registrable Securities), unless otherwise
directed in writing by a Holder as to its Registrable Securities,
the number of Registrable Securities to be registered on such
Registration Statement will first be reduced by Registrable
Securities not acquired pursuant to the Purchase Agreement (whether
pursuant to registration rights or otherwise), second by
Registrable Securities represented by Holders of Warrant Shares
(applied, in the case that some Warrant Shares may be registered,
to the Holders on a pro rata basis based on the total number of
unregistered Warrant Shares held by such Holders) and third by
Registrable Securities represented by Holders of Conversion Shares
(applied, in the case that some Conversion Shares may be
registered, to the Holders on a pro rata basis based on the total
number of unregistered Conversion Shares held by such Holders).
The foregoing sentence is subject to determination by the
Commission that certain Holders must be reduced first based on the
number of Conversion Shares held by such Holders. In the
event the Company amends the Initial Registration Statement or
files a New Registration Statement, as the case may be, under
clauses (i) or (ii) above, the Company will use its commercially
reasonable efforts to file with the Commission, as promptly as
allowed by Commission or SEC Guidance provided to the Company or to
registrants of securities in general, one or more registration
statements on Form S-3 or such other form available to register for
resale those Registrable Securities that were not registered for
resale on the Initial Registration Statement, as amended, or the
New Registration Statement (the “ Remainder Registration
Statements ”).
(b)
The Company shall use
its commercially reasonable efforts to cause each Registration
Statement to be declared effective by the Commission as soon as
practicable and, with respect to the Initial Registration
Statement, the New Registration Statement or the Remainder
Registration Statement, as applicable, no later than the
Effectiveness Deadline (including filing with the Commission a
request for acceleration of effectiveness in accordance with Rule
461 promulgated under the Securities Act), and shall use its
commercially reasonable efforts to keep each Registration Statement
continuously effective under the Securities Act until the earlier
of (i) such time as all of the Registrable Securities covered by
such Registration Statement have been publicly sold by the Holders
or (ii) the date that all Registrable Securities covered by such
Registration Statement may be sold by non-affiliates without volume
or manner-of-sale restrictions pursuant to Rule 144, and
without the requirement for the Company to be in compliance with
the current public information requirement under Rule 144 as
determined by counsel to the Company pursuant to a written opinion
letter to such effect, addressed and reasonably acceptable to the
Company’s transfer agent (the “ Effectiveness
Period ”). The Company shall telephonically request
effectiveness of a Registration Statement as of 5:00 P.M. New York
City time on a Trading Day. The Company shall promptly notify
the Holders via facsimile or electronic mail of a
“.pdf” format data file of the effectiveness of a
Registration Statement on the same Trading Day that the Company
telephonically confirms effectiveness with the Commission, which
date of confirmation shall initially be the date requested for
effectiveness of such Registration Statement. The Company shall, by
9:30 A.M. New York City time on the first Trading Day after the
Effective Date, file a final Prospectus
5
with the Commission, as
required by Rule 424(b). Failure to so notify the Holders on
or before the second Trading Day after such notification or
effectiveness or failure to file a final Prospectus as aforesaid
shall be deemed an Event under Section 2(c) .
(c)
If: (i) the Initial
Registration Statement is not filed with the Commission on or prior
to the Filing Deadline, (ii) the Initial Registration Statement or
the New Registration Statement, as applicable, is not declared
effective by the Commission (or otherwise does not become
effective) for any reason on or prior to the Effectiveness Deadline
or (iii) after its Effective Date, (A) such Registration Statement
ceases for any reason (including without limitation by reason of a
stop order, or the Company’s failure to update the
Registration Statement), to remain continuously effective as to all
Registrable Securities for which it is required to be effective or
(B) the Holders are not permitted to utilize the Prospectus therein
to resell such Registrable Securities for any reason for more than
an aggregate of twenty (20) consecutive Trading Days or forty (40)
Trading Days (which need not be consecutive days) during any twelve
(12) month period, or (iv) the Company fails to satisfy the current
public information requirement pursuant to Rule 144(c)(1) as a
result of which the Holders who are not affiliates are unable to
sell Registrable Securities without restriction under Rule 144 (or
any successor thereto), (any such failure or breach in clauses (i)
through (iv) above being referred to as an “ Event
,” and, for purposes of clauses (i), (ii) or (iv), the date
on which such Event occurs, or for purposes of clause (iii), the
date on which such twenty (20) or forty (40) calendar day period is
exceeded, being referred to as an “ Event Date
”), then in addition to any other rights the Holders may have
hereunder or under applicable law, on each such Event Date and on
each monthly anniversary of each such Event Date (if the applicable
Event shall not have been cured by such date) until the earlier of
(1) the applicable Event is cured or (2) the Registrable
Securities are eligible for resale pursuant to Rule 144
without manner of sale or volume restrictions, the Company shall
pay to each Holder an amount in cash, as partial liquidated damages
and not as a penalty (“ Liquidated Damages ”),
equal to one percent (1%) of the aggregate purchase price paid by
such Holder pursuant to the Purchase Agreement for any unregistered
Registrable Securities then held by such Holder. The parties
agree that (1) the Company will not be liable for Liquidated
Damages under this Agreement with respect to any Notes, Conversion
Shares, Warrants or Warrant Shares (prior to their issuance), (2)
notwithstanding anything to the contrary herein or in the Purchase
Agreement, no Liquidated Damages shall be payable with respect to
any period after the expiration of the Effectiveness Period (except
in respect of an Event described in Section 2(c)(iv)
herein), (it being understood that this sentence shall not relieve
the Company of any Liquidated Damages accruing prior to the
Effectiveness Deadline) and in no event shall, the aggregate amount
of Liquidated Damages (excluding Liquidated Damages payable in
respect of an Event described in Section 2(c)(iv) herein)
payable to a Holder exceed, in the aggregate, six percent (6%) of
the aggregate purchase price paid by such Holder pursuant to the
Purchase Agreement (twelve percent (12%) if the only Event is
clause (iv)) and (3) in no event shall the Company be liable in any
thirty (30) day period for Liquidated Damages under this Agreement
in excess of one percent (1%) of the aggregate purchase price paid
by the Holders pursuant to the Purchase Agreement. The
Liquidated Damages pursuant to the terms hereof shall apply on a
daily pro-rata basis for any portion of a month prior to the cure
of an Event, except in the case of the first Event Date. The
Company shall not be liable for Liquidated Damages under this
Agreement as to any Registrable Securities which are not permitted
by the Commission to be included in a Registration Statement due
solely to SEC Guidance from the time that it is determined that
such Registrable Securities are not permitted to be registered
until such time as the provisions of this Agreement as to the
Remainder Registration Statements required to be filed hereunder
are triggered, in which case the provisions of this Section
2(c) shall once again apply, if applicable. In such case,
the Liquidated Damages shall be calculated to only apply to the
percentage of Registrable Securities which are permitted in
accordance with SEC Guidance to be included in such Registration
Statement. The Company shall not be liable for Liquidated Damages
under this Agreement for the period that a Registration Statement
is not effective as a result of the requirement that the Company
file a post-effective amendment to such Registration Statement in
order to update the financial statements as required by Section
10(a)(3) of the Securities Act,
6
provided that the
Company uses commercially reasonable efforts to obtain the
effectiveness of such Registration Statement. The
Effectiveness Deadline for a Registration Statement shall be
extended without default or Liquidated Damages hereunder in the
event that the Company’s failure to obtain the effectiveness
of the Registration Statement on a timely basis results
from the failure of a Purchaser to timely provide the Company
with information requested by the Company and necessary to complete
the Registration Statement in accordance with the requirements of
the Securities Act (in which case the Effectiveness Deadline would
be extended with respect to Registrable Securities held by such
Purchaser). Notwithstanding any provision of this Agreement
to the contrary, the Company shall be permitted to suspend for one
or more periods (provided that (i) the aggregate length of any one
suspension period shall not exceed ten (10) consecutive Business
Days, (ii) the length of all suspension periods in any 365 day
period shall not exceed twenty (20) Business Days in the aggregate,
and (iii) there is not more than one suspension period in any
thirty calendar day period; provided further, however, that until
the Company meets the eligibility requirements to use Form S-3, the
first thirty (30) calendar days (or the first forty-five (45)
calendar days if the Company is using its best efforts to cause the
effectiveness of the applicable post-effective amendment) of a
suspension due to a full review by the Commission of a
post-effective amendment of a Registration Statement shall not
count towards the ten (10) and twenty (20) Business Day limitations
set forth in the preceding clauses (i) and (ii), respectively) the
actions required under paragraph 2(a) of this Agreement to the
extent that the Company’s Board of Directors concludes
reasonably and in good faith that the disclosure of information in
the Prospectus is not in the best interest of the
Company.
(d)
Each Holder agrees to
furnish to the Company a completed Selling Stockholder
Questionnaire not more than five (5) Trading Days following the
date of this Agreement. At least ten (10) Trading Days prior to the
first anticipated filing date of a Registration Statement for any
registration under this Agreement, the Company will notify each
Holder of the information the Company requires from that Holder
other than the information contained in the Selling Stockholder
Questionnaire, if any, which shall be completed and delivered to
the Company promptly upon request and, in any event, within three
(3) Trading Days prior to the applicable anticipated filing date.
Each Holder further agrees that it shall not be entitled to
be named as a selling securityholder in the Registration Statement
or use the Prospectus for offers and resales of Registrable
Securities at any time, unless such Holder has returned to the
Company a completed and signed Selling Stockholder Questionnaire
and a response to any requests for further information as described
in the previous sentence. If a Holder of Registrable Securities
returns a Selling Stockholder Questionnaire or a request for
further information, in either case, after its respective deadline,
the Company shall use its commercially reasonable efforts to take
such actions as are required to name such Holder as a selling
security holder in the Registration Statement or any pre-effective
or post-effective amendment thereto and to include (to the extent
not theretofore included) in the Registration Statement the
Registrable Securities identified in such late Selling Stockholder
Questionnaire or request for further information. Each Holder
acknowledges and agrees that the information in the Selling
Stockholder Questionnaire or request for further information as
described in this Section 2(d) will be used by the Company
in the preparation of the Registration Statement and hereby
consents to the inclusion of such information in the Registration
Statement.
(e)
In the event that Form
S-3 is not available for the registration of the resale of
Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable
Securities on another appropriate form reasonably acceptable to the
Holders and (ii) undertake to register the Registrable Securities
on Form S-3 promptly after such form is available, provided
that the Company shall maintain the effectiveness of the
Registration Statement then in effect until such time as a
Registration Statement on Form S-3 covering the Registrable
Securities has been declared effective by the Commission. The
Purchasers acknowledge that at the time of the Closing and at the
time of the Filing Deadline the Company will not be eligible to use
a Form S-3 to register the resale of the Registrable
Securities.
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3.
Registration
Procedures
In connection with the
Company’s registration obligations hereunder, the Company
shall:
(a)
Not less than five (5)
Trading Days prior to the filing of each Registration Statement and
not less than one (1) Trading Day prior to the filing of any
related Prospectus or any amendment or supplement thereto (except
for amendments or supplements required by the Company filing Annual
Reports on Form 10-K, and Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K and any similar or successor reports),
(i) furnish to the Holder copies of such Registration Statement,
Prospectus or amendment or supplement thereto, as proposed to be
filed, which documents will be subject to the review of such Holder
(it being acknowledged and agreed that if a Holder does not object
to or comment on the aforementioned documents within such five (5)
Trading Day or one (1) Trading Day period, as the case may be, then
the Holder shall be deemed to have consented to and approved the
use of such documents) and (ii) use commercially reasonable efforts
to cause its officers and directors, counsel and independent
registered public accountants to respond to such inquiries as shall
be necessary, in the reasonable opinion of respective counsel to
each Holder, to conduct a reasonable investigation within the
meaning of the Securities Act. The Company shall not file any
Registration Statement or amendment or supplement thereto in a form
to which a Holder reasonably objects in good faith, provided that,
the Company is notified of such objection in writing within the
five (5) Trading Day or one (1) Trading Day period described above,
as applicable.
(b)
(i) Prepare and
file with the Commission such amendments (including post-effective
amendments) and supplements, to each Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep
such Registration Statement continuously effective as to the
applicable Registrable Securities for its Effectiveness Period;
(ii) cause the related Prospectus to be amended or supplemented by
any required Prospectus supplement (subject to the terms of this
Agreement), and, as so supplemented or amended, to be filed
pursuant to Rule 424; (iii) respond as promptly as reasonably
practicable to any comments received from the Commission with
respect to each Registration Statement or any amendment thereto
and, as promptly as reasonably possible, provide the Holders true
and complete copies of all correspondence from and to the
Commission relating to such Registration Statement that pertains to
the Holders as “Selling Stockholders” but not any
comments that would result in the disclosure to the Holders of
material and non-public information concerning the Company; and
(iv) comply with the provisions of the Securities Act and the
Exchange Act with respect to the disposition of all Registrable
Securities covered by a Registration Statement until such time as
all of such Registrable Securities shall have been disposed of
(subject to the terms of this Agreement) in accordance with the
intended methods of disposition by the Holders thereof as set forth
in such Registration Statement as so amended or in such Prospectus
as so supplemented; provided, however , that each Purchaser
shall be responsible for the delivery of the Prospectus to the
Persons to whom such Purchaser sells any of the Conversion Shares
or the Warrant Shares (including in accordance with Rule 172 under
the Securities Act), and each Purchaser agrees to dispose of
Registrable Securities in compliance with applicable federal and
state securities laws. In the case of amendments and supplements to
a Registration Statement which are required to be filed pursuant to
this Agreement (including pursuant to this Section 3(b) ) by
reason of the Company filing a report on Form 10-K, Form 10-Q or
Form 8-K or any analogous report under the Exchange Act, the
Company shall have incorporated such report by reference into such
Registration Statement, if applicable, or shall file such
amendments or supplements with the Commission on the same day on
which the Exchange Act report which created the requirement for the
Company to amend or supplement such Registration Statement was
filed.
(c)
Notify the Holders
(which notice shall, pursuant to clauses (iii) through (vi) hereof,
be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made) as promptly
as reasonably practicable (and, in the case of (i)(A) below, not
less than one
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(1) Trading Day prior
to such filing) and (if requested by any such Person) confirm such
notice in writing no later than one (1) Trading Day following the
day: (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to a Registration Statement is proposed to
be filed; (B) when the Commission notifies the Company whether
there will be a “review” of such Registration Statement
and whe
