Exhibit 10.3
FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this “ Agreement
”), dated as of May [___], 2008, by and between Merge
Healthcare Incorporated, a Wisconsin corporation (the “
Company ”), and Merrick RIS, LLC, a Delaware limited
liability company (the “ Buyer ”).
WHEREAS:
A. In
connection with that certain Securities Purchase Agreement dated as
of even date herewith, by and between the Company, certain of its
subsidiaries and the Buyer (the “ Securities Purchase
Agreement ”), the Company has agreed, upon the terms and
subject to the conditions of the Securities Purchase Agreement, to
issue and sell on the date hereof to the Buyer certain shares of
the Company’s Common Stock (the “ Common Stock
”), par value $0.01 per share.
B. To
induce the Buyer to execute and deliver the Securities Purchase
Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended, and the rules
and regulations thereunder, or any similar successor statute
(collectively, the “ 1933 Act ”), and applicable
state securities laws.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Buyer hereby agree as
follows:
1.
DEFINITIONS .
As used
in this Agreement, the following terms shall have the following
meanings:
(a) “
Effective Date ” means the date that the Registration
Statement is first declared effective by the SEC.
(b) “
Effectiveness Deadline ” means the date that is ninety
(90) days from the Filing Deadline.
(c) “
Filing Deadline ” means the date that is thirty
(30) days from the Demand Date (as defined in
Section 2(a)).
(d) “
Investor ” means the Buyer, any permitted transferee
of the shares of Common Stock to whom the Buyer assigns its rights
under this Agreement in accordance with the provisions of this
Agreement (including but not limited to Section 9) and who
agrees to become bound by the provisions of this Agreement in
accordance with Section 9, and any transferee or assignee
thereof to whom a transferee or assignee of the shares of Common
Stock, as applicable, assigns its rights under this Agreement in
accordance with the provisions of this Agreement (including but not
limited to Section 9) and who agrees to become bound by the
provisions of this Agreement in accordance with
Section 9.
(e) “
register ,” “ registered ” and
“ registration ” refer to a registration
effected by preparing and filing one or more Registration
Statements (as defined below) in compliance with the 1933 Act and
pursuant to Rule 415, and the declaration or ordering of
effectiveness of such Registration Statement(s) by the SEC.
(f) “
Registrable Securities ” means (i) 100% of the
shares of Common Stock issued under the Securities Purchase
Agreement and (ii) any shares of capital stock issued or
issuable with respect to such shares as a result of any stock
split, stock dividend, recapitalization, exchange, adjustment or
similar event or otherwise, until, in the case of any such
security, the earliest of:
(i) the
date on which such security has been effectively registered under
the 1933 Act and disposed of in accordance with the Registration
Statement relating thereto;
(ii) the
date on which such security may be resold without restriction
pursuant to Rule 144 or any successor provision thereto;
or
(iii) the
date on which such security has been publicly sold pursuant to
Rule 144 or any successor provision thereto.
(g) “
Registration Statement ” means a registration
statement or registration statements of the Company filed under the
1933 Act covering the Registrable Securities.
(h) “
Required Holders ” means the holders of at least a
majority of the Registrable Securities.
(i) “
Rule 415 ” means Rule 415 under the 1933 Act
or any successor rule providing for offering securities on a
continuous or delayed basis.
(j) “
SEC ” means the United States Securities and Exchange
Commission.
Capitalized
terms used herein and not otherwise defined herein shall have the
respective meanings set forth in the Securities Purchase
Agreement.
2.
REGISTRATION .
(a)
Mandatory Registration . Subject to Section 2(h), upon
the written request by the Required Holders to the Company (the
date of such request, the “ Demand Date ”), the
Company shall prepare and, as soon as practicable but in no event
later than the Filing Deadline, file with the SEC the Registration
Statement on Form S-3 covering the resale of all of the Registrable
Securities (the date of such filing, the “ Filing Date
”). In the event that Form S-3 is unavailable to the Company
for such a registration, the Company shall use such other form as
is available to the Company for such a registration on Form S-1 or
another appropriate form reasonably acceptable to the Required
Holders, subject to the provisions of Section 2(d). The
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Registration Statement prepared pursuant hereto shall register for
resale that number of shares of Common Stock equal to the number of
Registrable Securities as of the trading day immediately preceding
the date the Registration Statement is initially filed with the
SEC, subject to adjustment as provided in Section 2(e) and
Section 2(h), and shall contain the “Selling
Stockholders” section and “Plan of Distribution”
in substantially the form attached hereto as Annex I (except
if otherwise required pursuant to written comments received from
the SEC upon a review of the Registration Statement). The Company
shall use its reasonable best efforts to have the Registration
Statement declared effective by the SEC as soon as practicable, but
in no event later than the Effectiveness Deadline. By 9:30 am (New
York time) on the second Business Day following the Effective Date,
the Company shall file with the SEC in accordance with
Rule 424 under the 1933 Act the final prospectus to be used in
connection with sales pursuant to such Registration
Statement.
(b)
Allocation of Registrable Securities . The initial number of
Registrable Securities included in any Registration Statement and
each increase in the number of Registrable Securities included
therein shall be allocated pro rata among the Investors based on
the number of Registrable Securities held by each Investor at the
time the Registration Statement covering such initial number of
Registrable Securities or increase thereof is declared effective by
the SEC. In the event that an Investor sells or otherwise transfers
any of such Investor’s Registrable Securities, each
transferee that becomes an Investor shall be allocated a pro rata
portion of the then remaining number of Registrable Securities
included in the Registration Statement for such transferor. Any
shares of Common Stock included in the Registration Statement and
which remain allocated to any Person which ceases to hold any
Registrable Securities covered by such Registration Statement shall
be allocated to the remaining Investors, pro rata based on the
number of Registrable Securities then held by such Investors which
are covered by such Registration Statement. In no event shall the
Company include any securities other than Registrable Securities on
any Registration Statement filed pursuant to Section 2(a) hereof
without the prior written consent of the Required Holders.
(c)
Legal Counsel . Subject to Section 5 hereof, the
Investors holding at least a majority of the Registrable Securities
shall have the right to select one legal counsel to review and
oversee any registration pursuant to this Section 2 (“
Legal Counsel ”), which shall be McDermott Will &
Emery LLP or such other counsel as thereafter designated by the
holders of at least a majority of the Registrable Securities. The
Company and Legal Counsel shall reasonably cooperate with each
other in performing the Company’s and the Investors’
obligations under this Agreement.
(d)
Ineligibility for Form S-3 . 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 Form S-1 or another
appropriate form reasonably acceptable to the Required Holders and
(ii) undertake to register the Registrable Securities on Form
S-3 as soon as 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 SEC.
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(e)
Sufficient Number of Shares Registered . In the event the
number of shares available under a Registration Statement filed
pursuant to Section 2(a) is insufficient to cover all of the
Registrable Securities required to be covered by such Registration
Statement or an Investor’s allocated portion of the
Registrable Securities pursuant to Section 2(b), the Company
shall amend the applicable Registration Statement, or file a new
Registration Statement (on the short form available therefor, if
applicable), or both, so as to cover at least 100% of the number of
such Registrable Securities as of the trading day immediately
preceding the date of the filing of such amendment or new or
additional Registration Statement, in each case, as soon as
practicable, but in any event not later than twenty (20) days
after the Company becomes aware of the necessity therefor. The
Company shall use its reasonable best efforts to cause such
amendment and/or new or additional Registration Statement to become
effective as soon as practicable following the filing thereof. For
purposes of the foregoing provision, the number of shares available
under a Registration Statement shall be deemed “insufficient
to cover all of the Registrable Securities” if at any time
the number of shares of Common Stock available for resale under the
Registration Statement is less than the number of Registrable
Securities. Notwithstanding the foregoing, in the event the
Registration Statement is insufficient to cover all of the
Registrable Securities because the SEC has determined that a
registration of the offer and sale of all of the Registrable
Securities may not be made pursuant to Rule 415(a)(1)(i), then
the provisions of Section 2(h) shall apply.
(f)
Effect of Failure to File and Obtain and Maintain Effectiveness
of Registration Statement . If at any time while there are
Registrable Securities outstanding, subject to Section 2(h),
(i) a Registration Statement covering all the Registrable
Securities required to be covered thereby and required to be filed
by the Company pursuant to this Agreement is (A) not filed
with the SEC on or before the Filing Deadline (a “ Filing
Failure ”), or (B) filed with the SEC but not
declared effective by the SEC on or before the Effectiveness
Deadline (an “ Effectiveness Failure ”) or
(ii) on any day after the Effective Date sales of all of the
Registrable Securities required to be included on such Registration
Statement cannot be made (other than during an Allowable Grace
Period (as defined in Section 3(q)) pursuant to such
Registration Statement (including, without limitation, because of a
failure to keep such Registration Statement effective, to disclose
such information as is necessary for sales to be made pursuant to
such Registration Statement, a suspension or delisting of the
Common Stock on its principal trading market or exchange, or to
register a sufficient number of shares of Common Stock) (a “
Maintenance Failure ”), then, as relief for the
damages to any holder of Registrable Securities by reason of any
such delay in or reduction of its ability to sell the underlying
shares of Common Stock (which remedy shall not be exclusive of any
other remedies available at law or in equity), the Company shall
become liable for payment to each holder of Registrable Securities
relating to such Registration Statement an amount in cash equal to
one half of one percent (.5%) of the aggregate outstanding
principal amount of such Investor’s Term Notes (as such term
is defined in the Securities Purchase Agreement) on each of the
following dates: (i) the day thirty (30) days after a
Filing Failure and on every thirtieth day (pro rated for periods
totaling less than thirty (30) days) thereafter until such
Filing Failure is cured; (ii) the day of an Effectiveness
Failure and on every thirtieth day (pro rated for periods totaling
less than thirty (30) days) thereafter until such
Effectiveness Failure is cured; and (iii) the initial day of a
Maintenance Failure and on every thirtieth day (pro rated for
periods totaling less than thirty (30) days) thereafter until
such
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Maintenance Failure is cured; provided, however, that the
Additional Interest Amount shall be increased to one and one-half
percent (1.5%) in the event such Filing Failure, Effectiveness
Failure or Maintenance Failure has not been cured on or before the
90 th
day following the date any Additional Interest Amount first became
due.
The
payments to which a holder shall be entitled pursuant to this
Section 2(f) are referred to herein as “ Registration
Delay Payments .” Registration Delay Payments shall be
paid on the earlier of (I) the last day of the calendar month
during which such Registration Delay Payments are incurred and
(II) the third Business Day after the event or failure giving
rise to the Registration Delay Payments is cured. Notwithstanding
the foregoing, the amount of any Registration Delay Payment
actually payable shall be an amount yielded by multiplying the
Registration Delay Payment by a fraction, (x) the numerator of
which shall be the number of Registrable Securities beneficially
owned by the Investors on the date such Registration Delay Payment
becomes due and payable and required by Section 2(a) hereof to be
registered by the Company, and (y) the denominator of which
shall be the number of Registrable Securities beneficially owned by
the Investors on the date hereof. In the event the Company fails to
make Registration Delay Payments in a timely manner, such
Registration Delay Payments shall bear interest at the rate of one
and one-half percent (1.5%) per month (prorated for partial months)
until paid in full. The parties hereto agree that the additional
interest provided in this Section 2(f) constitutes a reasonable
estimate of the damages that may be incurred by Investors by reason
of a Filing Failure, Effectiveness Failure or Maintenance
Failure.
(g)
Piggyback Registrations . (i) Each time that the
Company proposes for any reason to register any of its Common Stock
under the 1933 Act (a “ Proposed Registration
”), other than pursuant to a registration statement on Form
S-4 or Form S-8 (or similar or successor forms), the Company shall
promptly give written notice (the “ Piggyback Notice
”) of such Proposed Registration to each of the Investors
(which notice shall be given not less than thirty (30) days
prior to the expected effective date of the Company’s
registration statement) and shall offer the Investors the right to
include any of their Registrable Securities in the Proposed
Registration. No registration pursuant to this Section 2(g) shall
relieve the Company of its obligations to register Registrable
Securities pursuant to the foregoing provisions of this
Section 2.
(ii) Each
Investor shall have twenty (20) days from the date of receipt
of the Piggyback Notice to deliver to the Company a written request
specifying the number of Registrable Securities such Investor
intends to sell and such Investor’s intended method of
disposition. Any Investor shall have the right to withdraw such
Investor’s request for inclusion of such Investor’s
Registrable Securities in any registration statement pursuant to
this Section 2(g) by giving written notice to the Company of such
withdrawal. Subject to Section 2(g)(iii) and Section 2(h)
below, the Company shall include in such registration statement all
such Registrable Securities so requested to be included
therein.
(iii) If
the managing underwriter or underwriters of any Proposed
Registration involving Registrable Securities advises the Company
that the total number of Registrable Securities that the Investors
and any other Persons intend to include in the offering
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exceeds
the number that can be sold in such offering without being likely
to have a material adverse effect on the price, timing or
distribution of the Common Stock offered or the market for the
Common Stock, then the Common Stock to be included in such
underwritten offering shall include the number of Registrable
Securities that such managing underwriter or underwriters advises
the Company in writing can be sold without having such adverse
effect, with such number to be allocated (A) first , to the
Company, (B) second , pro rata among the Investors who have
requested participation in such underwritten offering and (iii)
third , any other holder of Common Stock of the Company. The
pro rata allocations for each Investor who has requested
participation in such underwritten offering shall be the product of
(a) the aggregate number of Registrable Securities proposed to
be sold by all Investors in such underwritten offering multiplied
by (b) the fraction derived by dividing (x) the number of
Registrable Securities owned on the Closing Date by such Investor
by (y) the aggregate number of Registrable Securities owned on
the Closing Date by all Investors participating in the underwritten
offering. All participating Investors shall have the opportunity to
share pro rata that portion of such priority allocable to any
Investor(s) not so participating.
(h) If
the SEC shall determine that a registration of the offer and sale
of all of the Registrable Securities may not be made pursuant to
Rule 415(a)(1)(i) (a “ Primary Offering
Determination ”), then notwithstanding anything to the
contrary in this Section 2, the number and amount of
Registrable Securities to be included in the applicable
Registration Statement shall be reduced in accordance with this
Section 2(h) to the maximum number and amount of Registrable
Securities whose offer and sale may be registered under the 1933
Act in reliance on such rule. The Registrable Securities included
in such Registration Statement shall be allocated among all
Investors in accordance with Section 2(b). If the number or
amount of Registrable Securities included in any Registration
Statement is reduced pursuant to this Section 2(h), then
(1) the Company, to the extent not prohibited by the SEC,
shall file a subsequent Registration Statement with respect to the
remaining Registrable Securities on or before earlier of
(i) the sixty fifth (65) day after the Company acquires
actual knowledge that the Investors named in the previously filed
Registration Statement have resold substantially all of the
Registrable Securities included in such Registration Statement;
(ii) the one-hundred-and-eightieth (180th) day after the date
the previously filed Registration Statement became effective under
the 1933 Act; or (iii) such later date as may be required by
the SEC (in each case such date shall be a “Filing
Deadline” with respect to such Registration Statement); and
(2) the Company shall use its reasonable best efforts to cause
such subsequent Registration Statement to become effective under
the 1933 Act as promptly as practicable, but in any event by the
date (which shall be deemed to be the “Effectiveness Deadline
Date” with respect to such subsequent Registration Statement)
that is ninety (90) days after the date such subsequent
Registration Statement is required to be filed with the SEC
pursuant to this Section 2(h).
3.
RELATED OBLIGATIONS .
In
connection with its obligations pursuant to Section 2, the
Company shall have the following obligations:
(a) The
Company shall use its reasonable best efforts to respond to written
comments received from the SEC upon a review of the Registration
Statement within
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five
(5) Business Days. The Company shall submit to the SEC, within
three (3) Business Days after the Company learns that no
review of a particular Registration Statement will be made by the
staff of the SEC or that the staff of the SEC has no further
comments on a particular Registration Statement, as the case may
be, a request for acceleration of effectiveness of such
Registration Statement to a time and date not later than two
(2) Business Days after the submission of such request. The
Company shall keep each Registration Statement effective pursuant
to Rule 415 at all times until the earlier of (i) the
date as of which all of the Investors may sell all of the
Registrable Securities covered by such Registration Statement
without restriction pursuant to Rule 144 (or successor thereto)
promulgated under the 1933 Act, or (ii) the date on which the
Investors shall have sold all of the Registrable Securities covered
by such Registration Statement (the " Registration Period
”). The Company shall ensure that each Registration Statement
(including any amendments or supplements thereto and prospectuses
contained therein) shall not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein, or necessary to make the statements therein (in the
case of prospectuses, in the light of the circumstances in which
they were made) not misleading.
(b) The
Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the
Registration Statement and the prospectus used in connection with
such Registration Statement, which prospectus is to be filed
pursuant to Rule 424 promulgated under the 1933 Act, as may be
necessary to keep such Registration Statement effective at all
times during the Registration Period (except pursuant to Sections
3(f) and 3(q)), and, during such period, comply with the provisions
of the 1933 Act with respect to the disposition of all Registrable
Securities of the Company covered by such Registration Statement
until such time as all of such Registrable Securities shall have
been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such
Registration Statement. 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 Securities Exchange Act
of 1934, as amended (the “ 1934 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 SEC as expeditiously as
practicable on or following the date on which the 1934 Act report
is filed which created the requirement for the Company to amend or
supplement such Registration Statement.
(c) The
Company shall (A) permit Legal Counsel to review and comment
upon (i) a Registration Statement at least five
(5) Business Days prior to its filing with the SEC and
(ii) all amendments and supplements to all Registration
Statements (except for Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q and Current Reports on Form 8-K and any
similar or successor reports) within a reasonable number of days
prior to their filing with the SEC, and (B) not file any
Registration Statement or amendment or supplement thereto in a form
to which Legal Counsel reasonably objects; provided , that,
the failure of any Investor or his, her or its counsel to respond
to such proposed documents within five (5) Business Days after
receipt thereof shall be deemed approval of same. The Company shall
not submit a request for acceleration of the effectiveness of a
Registration Statement or any
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amendment or supplement thereto without the prior approval of Legal
Counsel, which consent shall not be unreasonably withheld. The
Company shall furnish to Legal Counsel, without charge, copies of
any correspondence from the SEC or the staff of the SEC to the
Company or its representatives relating to any Registration
Statement (redacted to eliminate material non-public information,
if any, in such correspondence) The Company shall reasonably
cooperate with Legal Counsel in performing the Company’s
obligations pursuant to this Section 3.
(d) The
Company shall furnish to Legal Counsel and each Investor whose
Registrable Securities are included in any Registration Statement,
without charge, (i) promptly after the same is prepared and
filed with the SEC, if requested by an Investor and not otherwise
available on the EDGAR system, at least one copy of such
Registration Statement and any amendments or supplement thereto,
including financial statements and schedules, all documents
incorporated therein by reference, all exhibits and each
preliminary prospectus (redacted to eliminate material non-public
information, if any, in any such exhibit or other document) and
(ii) upon the effectiveness of any Registration Statement, ten
(10) copies of the prospectus included in such Registration
Statement and all amendments and supplements thereto (or such other
number of copies as such Investor may reasonably request).
(e) The
Company shall use its reasonable best efforts to (i) register
and qualify, unless an exemption from registration and
qualification applies, the resale by Investors of the Registrable
Securities covered by a Registration Statement under such other
securities or “blue sky” laws of all applicable
jurisdictions in the United States, (ii) prepare and file in
those jurisdictions such amendments (including post-effective
amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness
thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration
Period, and (iv) take all other actions reasonably necessary
or advisable to qualify the Registrable Securities for sale in such
jurisdictions; provided , however , that the Company
shall not be required in connection therewith or as a condition
thereto to (x) qualify to do business in any jurisdiction,
(y) subject itself to general taxation in any jurisdiction, or
(z) file a general consent to service of process in any
jurisdiction in which it is not currently so qualified or subject
to general taxation or has not currently so consented. The Company
shall promptly notify Legal Counsel and each Investor who holds
Registrable Securities of the receipt by the Company of any
notification with respect to the suspension of the registration or
qualification of any of the Registrable Securities for sale under
the securities or “blue sky” laws of any jurisdiction
in the United States or its receipt of actual notice of the
initiation or threatening of any proceeding for such purpose.
(f) The
Company shall notify Legal Counsel and each Investor in writing
(each such notice to Legal Counsel and the Investors, a “
Suspension Notice ”) of the happening of any of the
following events, as promptly as practicable after becoming aware
of such event: (i) any request by the SEC or any other federal
or state governmental authority during the period of effectiveness
of the Registration Statement for amendments or supplements to a
Registration Statement or related prospectus or for additional
information; (ii) the issuance by the SEC or any other federal
or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose;
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(iii) the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; (iv) any event or circumstance which
necessitates the making of any changes in the Registration
Statement or prospectus, or any document incorporated or deemed to
be incorporated therein by reference, so that, in the case of the
Registration Statement, it will not include any untrue statement of
a material fact or omission to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and that in the case of the prospectus, it will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading and (v) the Company determines that, in the good
faith judgment of its Board of Directors, the registration or
offering of Registrable Securities would reasonably be expected to
materially adversely affect or materially interfere with any bona
fide material financing of the Company or any material transaction
under consideration by the Company or would require disclosure of
information that has not been and is not otherwise required to be,
disclosed to the public, the premature disclosure of which could
materially adversely affect the Company ( provided , that in
each case, no such notice contain any material, nonpublic
information), and, subject to Section 3(q), if applicable,
promptly prepare a supplement or amendment to such Registration
Statement to correct any such untrue statement or omission, and
deliver a copy of such supplement or amendment to Legal Counsel and
each Investor (or such other number of copies as Legal Counsel or
such Investor may reasonably request). The Company shall also
promptly notify Legal Counsel and each Investor in writing
(i) when any prospectus or any prospectus supplement or
post-effective amendment has been filed, and when a Registration
Statement or any post-effective amendment has become effective
(notification of such effectiveness shall be delivered to Legal
Counsel and each Investor by facsimile on the same day of such
effectiveness and by overnight mail), (ii) of the
Company’s reasonable determination that a post-effective
amendment to a Registration Statement would be appropriate or
(iii) that the Investor may continue use of the applicable
registration statement and related prospectus.
(g) The
Company shall use its reasonable best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of
the Registration Statement (other than during an Allowable Grace
Period), or the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction and, if such an
order or suspension is issued, to obtain the withdrawal of such
order or suspension as soon as reasonably practicable consistent
with the provisions of Section 3(f) and to notify Legal Counsel and
each Investor who holds Registrable Securities being sold of the
issuance of such order and the resolution thereof or its receipt of
actual notice of the initiation or threat of any proceeding for
such purpose.
(h) If
any Investor is required under applicable securities law to be
described in the Registration Statement as an underwriter, at the
reasonable request of such Investor, the Company shall furnish to
such Investor, on the date of the effectiveness of the Registration
Statement and thereafter from time to time on such dates as an
Investor may reasonably request (i) a letter, dated such date,
from the Company’s independent certified public accountants
in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten
public offering, addressed to the Investors, and
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(ii) an opinion, dated as of such date, of counsel
representing the Company for purposes of such Registration
Statement, in form, scope and substance as is customarily given in
an underwritten public offering, addressed to the Investors.
(i) Upon
the written request of any Investor in connection with any
Investor’s due diligence requirements, if any, the Company
shall make available for inspection by (i) any Investor, (ii)
Legal Counsel and (iii) one firm of accountants or other
agents retained by the Investors (collectively, the “
Inspectors ”), all pertinent financial, corporate and
other records (collectively, the “ Records ”),
as shall be reasonably deemed necessary by each Inspector to
fulfill a due diligence obligation by an Investor, and cause the
Company’s chief executive officer, chief financial officer
and executive vice president and secretary to be reasonably
available to the Inspectors for questions regarding the Records and
to supply all information which any Inspector may reasonably
request; provided , however , that each Inspector
shall agree in writing to hold in strict confidence and shall not
make any disclosure (except to an Investor) or use of any Record or
other information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so
notified, unless (a) the release of such Records is ordered
pursuant to a final, non-appealable subpoena or order from a court
or government body of competent jurisdiction, or (b) the
information in such Records has been made generally available to
the public other than by disclosure in violation of this or any
other Transaction Document. Nothing herein (or in any other
confidentiality agreement between the Company and any Investor)
shall be deemed to limit the Investors’ ability to sell
Registrable Securities in a manner which is otherwise consistent
with this Agreement and the other Transaction Documents, applicable
laws and regulations.
(j) The
Company shall hold in confidence and not make any disclosure of
information concerning an Investor provided to the Company unless
(i) disclosure of such information is necessary to comply with
federal or state securities laws, (ii) the disclosure of such
information is necessary to avoid or correct a mis
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