AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
AMENDED AND RESTATED INVESTOR
RIGHTS AGREEMENT
This Amended and
Restated Investor Rights Agreement (the “ Agreement ”) is
entered into as of the 13 th day of March 2009, by and among
LendingClub
Corporation , a Delaware corporation (the “
Company ”) and the investors listed on
Exhibit A hereto, referred to hereinafter as the
“ Investors ” and each individually as an
“ Investor .”
Whereas,
certain Investors (the “
Prior Investors ”) are holders of outstanding
shares of the Company’s Series A Preferred Stock (the
“ Series A Stock ”) issued by the
Company to such Prior Investors pursuant to the Series A
Preferred Stock Purchase Agreement by and among the Company and the
Prior Investors dated August 21, 2007, as amended from time to
time, and have also been granted certain registration rights,
information rights and other rights under that certain
Investor’ Rights Agreement by and among the Company and the
Prior Investors dated August 21, 2007 (the “ Prior
Agreement ”);
Whereas,
certain Investors (the “
Series B Investors ”) have agreed to
purchase shares of the Company’s Series B Preferred
Stock (the “ Series B Stock ”
together with the Series A Stock the “ Preferred
Stock ”) pursuant to that certain Series B
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 by
the Investors and the Company; and
Whereas
, in connection with the consummation of the
Financing, the Company and Prior Investors hereby agree that the
Prior Agreement shall be amended and restated in its entirety by
this Agreement, and the parties hereto desire to enter into this
Agreement in order to grant registration, information rights and
other rights to the Investors as set forth below.
Now,
Therefore, in
consideration of these premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.1 Definitions. As used in this Agreement the following terms
shall have the following respective meanings:
(a) “ Acquisition ” shall
have the meaning ascribed to such term in the Company’s
Amended and Restated Certificate of Incorporation as in effect on
the date hereof.
(b) “Exchange
Act” means the
Securities Exchange Act of 1934, as amended.
(c)
“Form S-3” means such form under the Securities Act as in
effect on the date hereof or any successor or similar 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.
(d) “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 2.9 hereof.
(e) “Initial
Offering” means
the Company’s first firm commitment underwritten public
offering of its Common Stock registered under the Securities
Act.
(f) “Major
Investor” means
an Investor that, together with its affiliates, including
investment funds under common management, owns at least 2,000,000
shares of Registrable Securities; provided, however , that
Bay Partners XI, L.P., and its affiliated funds (collectively,
“ Bay Partners ”) shall be deemed to be a
Major Investor for the purposes of this Agreement, so long as Bay
Partners holds at least 900,000 shares of Registrable
Securities.
(g) “ Qualified Public Offering
” shall have the meaning ascribed to such term in the
Company’s Amended and Restated Certificate of Incorporation
as in effect on the date hereof.
(h) “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.
(i)
“Registrable Securities” means:
(1) Common
Stock of the Company issuable or issued upon conversion of the
Shares;
(2) any Common Stock of the Company issued
as (or issuable upon the conversion or exercise of any warrant,
right or 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;
(3) shares of Common Stock that are issued
or issuable upon conversion of the Preferred Stock issuable upon
the exercise of those certain Warrants to Purchase Stock held by
SVB Financial Group (“ SVB ”) dated
October 29, 2007 and October 7, 2008, respectively (each
an “ SVB Warrant ” and collectively, the
“ SVB Warrants ”) solely with respect to
Sections 2.1, 2.3, 2.4 through 2.8, 2.11, 2.12, 2.13, 2.14,
and 5.1 through 5.13 hereof (in all cases only to the extent
related to a registration pursuant to Sections 2.3 and 2.4
hereof; provided, that SVB’s obligations under
Section 2.11 of this Agreement exist independently of any
registration under Sections 2.3 or 2.4 hereof) (it being
acknowledged that in connection with any amendment or restatement
of such sections or this Agreement, the number of shares of the
Company’s capital stock issuable to SVB upon exercise of the
SVB Warrants will not be counted or included as shares entitled to
participate in any vote, agreement or consent approving same for so
long as such SVB Warrant has not been exercised with respect to
such shares). SVB agrees to be bound by and comply with
Sections 2.1 (provided that the restrictions on transfer in
Section 2.1 shall only be applicable to the shares issued upon
exercise of the SVB Warrants but shall not restrict the transfer of
the SVB Warrants themselves), 2.3, 2.4 through 2.8, 2.11, 2.12,
2.13, 2.14, and 5.1 through 5.13 of this Agreement (in all cases
only to the extent related to a registration pursuant to
Sections 2.3 or 2.4 hereof); and
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(4) shares of Common Stock that are issued
or issuable upon conversion of the Preferred Stock issuable upon
the exercise of that certain Warrant to Purchase Stock held by Gold
Hill Venture Lending 03, LP (“ Gold Hill
”) dated February 19, 2008 (the “ Gold Hill
Warrant ”) solely with respect to Sections 2.1,
2.3, 2.4 through 2.8, 2.11, 2.12, 2.13, 2.14, and 5.1 through 5.13
of the hereof (in all cases only to the extent related to a
registration pursuant to Sections 2.3 and 2.4 hereof;
provided, that Gold Hill’s obligations under
Section 2.11 of this Agreement exist independently of any
registration under Sections 2.3 or 2.4 hereof) (it being
acknowledged that in connection with any amendment or restatement
of such sections or this Agreement, the number of shares of the
Company’s capital stock issuable to Gold Hill upon exercise
of the Gold Hill Warrant will not be counted or included as shares
entitled to participate in any vote, agreement or consent approving
same for so long as such Gold Hill Warrant has not been exercised
with respect to such shares). Gold Hill agrees to be bound by and
comply with Sections 2.1 (provided that the restrictions on
transfer in Section 2.1 shall only be applicable to the shares
issued upon exercise of the Gold Hill Warrant but shall not
restrict the transfer of the Gold Hill Warrant itself), 2.3,
Sections 2.4 through 2.8, 2.11, 2.12, 2.13, 2.14, and 5.1 through
5.13 of this Agreement (in all cases only to the extent related to
a registration pursuant to Sections 2.3 or 2.4
hereof).
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 or (ii) sold in a private transaction in which
the transferor’s rights under Section 2 of this
Agreement are not assigned
(j) “Registrable Securities then
outstanding” shall be the 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.
(k) “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 twenty-five thousand dollars
($25,000) 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).
(l)
“SEC” or “Commission” means
the Securities and Exchange Commission.
(m) “Securities
Act” shall mean
the Securities Act of 1933, as amended.
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(n) “Selling
Expenses” shall
mean all underwriting discounts and selling commissions applicable
to the sale.
(o) “Shares”
shall mean the Company’s
Preferred Stock held by the Investors listed on
Exhibit A hereto and their permitted
assigns.
(p) “Special Registration
Statement” shall mean (i) a registration statement
relating to any employee benefit plan or (ii) with respect to
any corporate reorganization or transaction under Rule 145 of
the Securities Act, any registration statements related to the
issuance or resale of securities issued in such a transaction or
(iii) a registration related to stock issued upon conversion
of debt securities.
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
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. After its
Initial Offering, the Company will not require any transferee
pursuant to Rule 144 to be bound by the terms of this
Agreement if the shares so transferred do not remain Registrable
Securities hereunder following such transfer.
(b) Notwithstanding the provisions of subsection
(a) above, no such restriction shall apply to a transfer by a
Holder that is (A) a partnership transferring to any
affiliated partnership or to its partners or former partners in
accordance with partnership interests, (B) a corporation
transferring to any affiliated corporation or to a wholly-owned
subsidiary or a parent corporation that owns all of the capital
stock of the Holder, (C) a limited liability company
transferring to any affiliated limited liability company or to its
members or former members in accordance with their interest in the
limited liability company, or (D) an individual transferring
to the Holder’s family member or trust for the benefit of an
individual Holder; provided that in each case the transferee
will agree in writing to be subject to the terms of this Agreement
to the same extent as if he were an original Holder
hereunder.
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(c) Each certificate representing Shares or
Registrable Securities shall be stamped or otherwise imprinted with
legends substantially similar to the following (in addition to any
legend required under applicable state securities laws):
THE SECURITIES
REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE “ ACT ”) AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED.
THE SALE,
PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A
CERTAIN INVESTOR RIGHTS AGREEMENT BY AND BETWEEN THE STOCKHOLDER
AND THE COMPANY. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON
WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.
(d) The Company shall be obligated to reissue
promptly unlegended certificates at the request of any Holder
thereof if the Company has completed its Initial Offering and 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 and
legend, provided that the second legend listed above shall
be removed only at such time as the Holder of such certificate is
no longer subject to any restrictions hereunder.
(e) 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.
(a) Subject to the conditions of this
Section 2.2, if the Company shall receive a written request
from the Holders of a majority of the Registrable Securities (the
“ Initiating Holders ”) that the Company
file a registration statement under the Securities Act covering the
registration of a majority of the Registrable Securities then
outstanding and for which the anticipated aggregate offering price,
net of underwriting discounts and commissions, would exceed
$10,000,000, then the Company shall, within thirty (30) days
of the receipt thereof, give written notice of such request to all
Holders, and subject to the limitations of this Section 2.2,
use reasonable best efforts to effect, as expeditiously as
reasonably possible, the registration under the Securities Act of
all Registrable Securities that all Holders request to be
registered.
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(b) 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 2.2 or any request
pursuant to Section 2.4 and the Company shall include such
information in the written notice referred to in
Section 2.2(a) or Section 2.4(a), as applicable. 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
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 the Company, subject
to the approval of the Holders of at least fifty-five percent (55%)
of the Registrable Securities held by all Initiating Holders, which
approval shall not be unreasonably withheld or delayed.
Notwithstanding any other provision of this Section 2.2 or
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 that
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 number of Registrable Securities held by all
such Holders (including the Initiating Holders); provided,
however , that the number of shares of Registrable Securities
to be included in such underwriting and registration shall not be
reduced unless all other securities of the Company are first
entirely excluded from the underwriting and registration. Any
Registrable Securities excluded or withdrawn from such underwriting
shall be withdrawn from the registration.
(c) The Company shall not be required to effect a
registration pursuant to this Section 2.2:
(i) prior to the earlier of (A) the third
anniversary of the date of this Agreement or (B) the
expiration of the restrictions on transfer set forth in
Section 2.11 following the Initial Offering;
(ii) after the Company has effected two
(2) registrations pursuant to this Section 2.2, and such
registrations have been declared or ordered effective;
(iii) during the period starting with the date of
filing of, and ending on the date one hundred eighty
(180) days following the effective date of the registration
statement pertaining to the Initial Offering (or such longer period
as may be determined pursuant to Section 2.11 hereof);
provided that the Company makes reasonable good faith
efforts to cause such registration statement to become
effective;
(iv) if within thirty (30) days after receipt of
a written request from Initiating Holders pursuant to
Section 2.2(a), the Company gives notice to the Holders of the
Company’s intention to file a registration statement for its
Initial Offering within ninety (90) days;
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(v) if the Company shall furnish to Holders
requesting a registration statement pursuant to this
Section 2.2 a certificate signed by the Chairman of the Board
stating that in the good faith judgment of the Board of Directors
of the Company, it would be detrimental to the Company and its
stockholders for such registration statement to be effected at such
time, in which event the Company shall have the right to defer such
filing for a period of not more than ninety (90) days after
receipt of the request of the Initiating Holders; provided
that such right to delay a request shall be exercised by the
Company not more than once in any twelve (12) month
period;
(vi) if the Initiating Holders propose to dispose of
shares of Registrable Securities that may be immediately registered
on Form S-3 pursuant to a request made pursuant to Section 2.4
below; or
(vii) 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.
2.3 Piggyback Registrations.
The Company shall notify all Holders
of Registrable Securities in writing at least fifteen
(15) days prior to the filing of any registration statement
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 pursuant to
Sections 2.2 and 2.4 and Special Registration Statements) 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 of which the
Company gives notice under this Section 2.3 is for an
underwritten offering, the Company shall so advise the Holders of
Registrable Securities. In such event, the right of any such Holder
to include Registrable Securities 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 this 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 and, second, to the Holders on a
pro rata basis based on the total number of Registrable
Securities held by the Holders; provided , however ,
that no such reduction shall reduce the amount of securities of the
selling Holders included in the registration below thirty percent
(30%) of the total amount of securities included in such
registration,
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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 clause. In no
event will shares of any other selling stockholder be included in
such registration if the inclusion of such shares would reduce the
number of shares that may be included by Holders without the
written consent of Holders of not less than sixty-six and
two-thirds percent (66-2/3%) of the Registrable Securities proposed
to be sold in the offering. If any Holder disapproves of the terms
of any such underwriting, such Holder may elect to withdraw
therefrom by written notice to the Company and the underwriter,
delivered at least ten (10) business days prior to the
effective date of the registration statement. Any Registrable
Securities excluded or withdrawn from such underwriting shall be
excluded and withdrawn from the registration. For any Holder which
is a partnership, limited liability company or corporation, the
partners, retired partners, members, retired members and
stockholders of such Holder, or the estates and family members of
any such partners, retired partners, members and retired members
and any trusts for the benefit of any of the foregoing person shall
be deemed to be a single “ Holder ,” and
any pro rata reduction with respect to such “
Holder ” shall be based upon the aggregate
amount of shares carrying registration rights owned by all entities
and individuals included in such “ Holder
,” as defined in this 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 whether or not any
Holder has elected to include securities in such registration, and
shall promptly notify any Holder that has elected to include shares
in such registration of such termination or withdrawal. 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 Registrable Securities 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, 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, use reasonable best
efforts to 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
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
fifteen (15) days after receipt 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 is not available for such offering by the Holders,
or
(ii) if the 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 one million dollars ($1,000,000);
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(iii) if within thirty (30) days after receipt of
a written request from any Holder or Holders pursuant to this
Section 2.4, the Company gives notice to such Holder or
Holders of the Company’s intention to make a public offering
within ninety (90) days, other than pursuant to a Special
Registration Statement;
(iv) if the Company shall furnish to the 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 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 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
(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) Subject to the foregoing, the Company shall use
its reasonable best efforts to 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 requests of the Holders. Registrations effected pursuant to
this Section 2.4 shall not be counted as demands for
registration or registrations effected pursuant to
Section 2.2.
2.5 Expenses of Registration.
Except as specifically provided
herein, all Registration Expenses incurred in connection with any
registration, qualification or compliance pursuant to
Section 2.2, 2.3 or 2.4 herein shall be borne by the Company,
including the expense of one special counsel of the selling Holders
not to exceed Twenty-Five Thousand Dollars ($25,000.00). 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 2.2 or 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 at least fifty-five percent
(55%) of Registrable Securities agree to deem such registration to
have been effected as of the date of such withdrawal for purposes
of determining whether the Company shall be obligated pursuant to
Section 2.2(c)(ii) to undertake any subsequent registration,
in which event such right shall be forfeited by all Holders. 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 such
registration shall not be deemed to have been effected for purposes
of determining whether the Company shall be obligated pursuant to
Section 2.2(c)(ii) to undertake any subsequent
registration.
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2.6 Obligations of the Company.
Whenever required to effect the
registration of any Registrable Securities, the Company shall use
its reasonable best efforts to, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and 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 sixty (60) 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
ninety (90) 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 Initiating
Holders hereby agree not to offer or sell any Registrable
Securities pursuant to such registration statement during the
Suspension Period) if the Company reasonably believes that there is
or may be in existence material nonpublic information or events
involving the Company, the failure of which to be disclosed in the
prospectus included in the registration statement could result in a
Violation (as defined below). In the event that the Company shall
exercise its right to delay or suspend the filing or effectiveness
of a registration hereunder, 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. The Company may extend the Suspension Period for
an additional consecutive ninety (90) days with the consent of
the holders of at least fifty-five percent (55%) of the Registrable
Securities registered under the applicable registration statement.
No more than two (2) such Suspension Periods shall occur in
any twelve (12) month period. In no event shall any Suspension
Period, when taken together with all prior Suspension Periods,
exceed one hundred eighty (180) days in the aggregate .
If so directed by the Company, all Holders registering shares under
such registration statement shall (i) not offer to sell any
Registrable Securities pursuant to the registration statement
during the period in which the delay or suspension is in effect
after receiving notice of such delay or suspension; and
(ii) use their reasonable best efforts to deliver to the
Company (at the Company’s expense) all copies, other than
permanent file copies then in such Holders’ possession, of
the prospectus relating to such Registrable Securities current at
the time of receipt of such notice. Notwithstanding the foregoing,
the Company shall not be required to file, cause to become
effective or maintain the effectiveness of any registration
statement other than a registration statement on Form S-3 (or any
comparable or successor form or forms) 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
u
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