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Exhibit 10.6
REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this "Agreement" ), dated as
of June 13, 2008, by and between ICP Solar Technologies, Inc., a
Nevada corporation (the "Company" ), and each buyer
identified on the Schedule of Buyers attached hereto (collectively,
the “BUYERS” and each individually, the
“BUYER”).
WHEREAS:
A. In
connection with the Securities Purchase Agreement by and among the
parties hereto of even date herewith (the "Securities Purchase
Agreement" ), the Company has agreed, upon the terms and
subject to the conditions contained therein, to issue and sell to
the Buyer the following (as each capitalized term not otherwise
defined herein shall have the meaning ascribed to it in the
Securities Purchase Agreement):
(i)
Convertible debentures of the Company (the
“Debentures” ) issued pursuant to the Securities
Purchase Agreement, and
(ii)
Warrants in the amount described in the Securities Purchase
Agreement,
where the Debenture is convertible into shares
of the Company's common stock, par value $0.00001 per share
(the "Common Stock" ), upon the terms and subject to the
limitations and conditions set forth in the Debenture and where
each of the Warrants is exercisable into shares of the Company's
Common Stock, each upon the terms and conditions and subject to the
limitations and conditions set forth in the Warrants, all subject
to the terms and conditions of the Securities Purchase Agreement;
and
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.
a. As used in this Agreement, the following terms shall have the
following meanings:
“Additional Registration Statement”
shall have the meaning ascribed to it in Section 3(b) below.
“Additional Registration Effectiveness
Deadline” shall have the meaning ascribed to it in
Section 3(b) below.
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“Additional Registration Filing
Deadline” shall have the meaning ascribed to it in
Section 3(b) below.
"Buyer" means the purchaser of Debentures and
Warrants pursuant to the Securities Purchase Agreement specified on
the signature page hereof, and any transferee or assignee who
agrees to become bound by the provisions of this Agreement in
accordance with Section 10 hereof.
" Cutback
Shares " means any of the Target Registration Amount of
Registrable Securities not included in any of the Registration
Statements previously declared effective hereunder as a result of a
limitation on the maximum number of shares of Common Stock of the
Company permitted to be registered by the staff of the SEC pursuant
to Rule 415.
“Effective Date” shall mean the date
that the initial Registration Statement is first declared effective
by the Commission.
"Effectiveness Period" means, as to any
Registration Statement required to be filed pursuant to this
Agreement, the period commencing on the Effective Date of such
Registration Statement and ending on the earliest to occur of (a)
the second (2 nd ) anniversary of such Effective Date
(provided that, if the Registrable Securities are not eligible for
resale under Rule 144 as of such second (2 nd )
anniversary, such period shall be extended for up to three (3)
additional years until the Registrable Securities become eligible
for resale under Rule 144), (b) such time as all of the Registrable
Securities covered by such Registration Statement have been
publicly sold by the Holders of the Registrable Securities included
therein, or (iii) such time as all of the Registrable Securities
covered by such Registration Statement may be sold by the Holders
pursuant to Rule 144 as determined by the counsel to the Company
pursuant to a written opinion letter to such effect, addressed and
acceptable to the Company's transfer agent and the affected
Holders.
“Effectiveness Deadline,” (a) with
respect to the Initial Registration Statement, shall mean the
ninetieth (90 th ) calendar day after the date hereof
and with respect to any Additional Registration Statements which
may be required pursuant to Section 3(b), the 90th calendar day
following the date on which an additional Registration Statement is
required to be filed hereunder; provided, however, that in the
event the Company is notified by the Commission that one or more of
the above Registration Statements 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
Trading Day following the date on which the Company is so notified
if such date precedes the dates otherwise required above and (b)
with respect to any Additional Registration Statement, shall mean
the Additional Registration Effectiveness Deadline.
“Exclusion Period” shall have the
meaning set forth in Section 3(p) below.
“Filing Deadline” shall mean the
Initial Registration Filing Deadline, or any applicable Additional
Registration Filing Deadline.
“FINRA” shall mean the Financial
Industry Regulatory Authority (f/k/a the National Association of
Securities Dealers, Inc.).
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“Initial Registration Filing Deadline”
shall mean, with respect to the Initial Registration Statement
required hereunder, July 15, 2008.
“Initial Registration Minimum” means a
number of Registrable Securities equal to the lesser of (i) the
total number of Registrable Securities and (ii) the maximum number
which would enable the Company to conduct such offering in
accordance with the provisions of Rule 415 as advised by the staff
of the Commission (the “Staff” ) in a written
comment letter or otherwise (which number shall be no less than
thirty percent (30%) of the number of issued and outstanding shares
of Common Stock that are held by non-affiliates of the Company on
the day immediately prior to the filing date of the Initial
Registration Statement, unless the Staff expressly requires
otherwise).
"
Investor " means a Buyer or any transferee or assignee
thereof to whom a Buyer assigns its rights under this Agreement and
who agrees to become bound by the provisions of this Agreement in
accordance with Section 10 hereof and any transferee or assignee
thereof to whom a transferee or assignee assigns its rights under
this Agreement and who agrees to become bound by the provisions of
this Agreement in accordance with Section 10.
“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 by the Commission pursuant to 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.
"Register," "Registered," and
"Registration" refer to a registration effected by preparing
and filing a Registration Statement or Statements in compliance
with the 1933 Act and pursuant to Rule 415 under the 1933 Act or
any successor rule providing for offering securities on a
continuous basis ( "Rule 415" ), and the declaration or
ordering of effectiveness of such Registration Statement by the
United States Securities and Exchange Commission (the
"Commission").
"Registrable Securities," for a given
Registration, means (a)any shares of Common Stock (the
“Warrant Shares” ) issued or issuable upon
exercise of or otherwise pursuant to the Warrant(s), and (b) any
shares of capital stock issued or issuable as a dividend on or in
exchange for or otherwise with respect to any of the foregoing, (c)
any additional shares of Common Stock issuable in connection with
any anti-dilution provisions in the Warrants (in each case, without
giving effect to any limitations on exercise set forth in the
Warrant), and (d) any other shares of common stock issued pursuant
to the terms of the Securities Purchase Agreement, the Warrants,
this Registration Rights Agreement or any other Transaction
Document (as defined in the Securities Purchase Agreement), and (e)
any securities issued or issuable upon any stock split, dividend or
other distribution, recapitalization or similar event with respect
to the foregoing.
“Registration Failure Liquidated
Damages” shall have the meaning set forth in Section
4 below.
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"Registration Statement(s)" means a registration
statement(s) of the Company under the 1933 Act.
“Registration Trigger Date” shall have
the meaning set forth in Section 3(b) below.
“Rule 424” means Rule 424 promulgated
by the Commission pursuant to the Securities Act, as such Rule may
be amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially
the same purpose and effect as such Rule.
“SEC Guidance” means (i) the
Securities Act, and (ii) any publicly-available written or oral
guidance, comments, requirements or requests of the Commission
staff.
“SEC Share Reduction” shall have the
meaning ascribed to it in Section 2(a) below.
“Securities” shall have the meaning
ascribed to it in the Securities Purchase Agreement.
“Series A Warrant Shares” shall mean
the Warrant Shares issuable upon the exercise of the Series A
Warrants.
“Series B Warrant Shares” shall mean
the Warrant Shares issuable upon the exercise of the Series B
Warrants.
“Series C Warrant Shares” shall mean
the Warrant Shares issuable upon the exercise of the Series C
Warrants.
“Target Registration Amount” shall
have the meaning set forth in Section 2(a) below.
“Target Registration Shortfall” shall
have the meaning set forth in Section 2(a) below.
“Underlying Debenture Shares” means
the shares of Common Stock issuable upon conversion of the
Debentures and payment of interest thereunder.
“Warrants” means the warrants issued
by the Company pursuant to the Securities Purchase Agreement in
conjunction with the Debenture issued by the Company.
“Warrant Shares” means the shares of
Common Stock issuable upon exercise of the Warrants.
b. 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. Following the Closing
of any Debenture pursuant to the Securities Purchase Agreement, the
Company shall prepare, and, on or prior to the Initial Registration
Filing Deadline (as defined above) file with the Commission a
Registration
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Statement on Form S-1 (or, if Form S-1 is not
then available, on such form of Registration Statement as is then
available to effect a registration of the Registrable Securities,
subject to the consent of the Buyer, which consent will not be
unreasonably withheld)(the “Initial Registration
Statement” ) covering the resale of the Registrable
Securities which Registration Statement, to the extent allowable
under the 1933 Act and the rules and regulations promulgated
thereunder (including Rule 416), shall state that such Registration
Statement also covers such indeterminate number of additional
shares of Common Stock as may become issuable upon conversion of or
otherwise pursuant to the Debenture and exercise of or otherwise
pursuant to the Warrants to prevent dilution resulting from stock
splits, stock dividends or similar transactions and shall contain
(unless otherwise directed by at least a three-fourths (3/4)
majority in interest of the Holders) substantially the
“ Plan of Distribution ”
attached hereto as Annex A . The number of shares of Common
Stock initially included in such Registration Statement shall be no
less than 150% of the aggregate number of Conversion Shares that
are then issuable upon conversion of the Debenture or otherwise
pursuant to the Debenture (based on the Conversion Price [as
defined in the Debenture] then in effect) and assuming that all
interest that accrues for the entire term of the Debentures is
payable in Common Stock, plus the aggregate number of Warrant
Shares that are then issuable upon exercise of or otherwise
pursuant to the Warrants, without regard to any limitation on the
Buyer's ability to convert the Debenture or exercise the Warrants
(collectively, the “Target Registration Amount”
). Notwithstanding the foregoing, if the Company is advised by the
staff of the Commission in a written comment letter or otherwise
that it is not eligible to conduct the offering of the Debentures
under Rule 415 promulgated under the 1933 Act because of the number
of shares sought to be included in the Registration Statement,
then, subject to any applicable Registration Failure Liquidated
Damages (as defined herein), the Company may reduce (an
“SEC Share Reduction” ) the number of shares
covered by such Registration Statement to the maximum number which
would enable the Company to conduct such offering in accordance
with the provisions of Rule 415 (“Rule 415 Eligible
”)(subject to Registration Failure Liquidated Damages, as
defined below, if the Company reduces unilaterally the number of
shares covered by such Registration Statement to a number less than
the Initial Registration Minimum). In the event of an SEC Share
Reduction, the number of Registrable Securities registered shall be
cut back pro rata (based upon the relative number of Warrants held
by each Holder), provided that (i) the inclusion of the Series A
Warrant Shares in such initial Registration Statement shall take
precedence over and shall not be cut back until the following
securities of the Company are cut back and removed from such
Registration Statement (in the following order): As necessary, (i)
Series C Warrants shares shall be cut back and removed from the
Registration Statement first, and (ii) Series B Warrants shall be
cut back and removed from the Registration Statement first and
(iii) Series A Warrants shall be cut back and removed from the
Registration Statement third. In the event that, due to an SEC
Share Reduction or otherwise, any Registration Statement filed
hereunder shall (when combined with any previous Registration
Statements that are current and effective) register a number of
shares of Common Stock which less than the Target Registration
Amount (a “Target Registration Shortfall”), then the
unregistered portion of the Target Registration Amount (the
“Target Registration Shortfall Amount”) shall be
included in the next Additional Registration Statement (in
accordance with Section 3(b) below).
The Company shall, as early as practicable on
the Trading Day after the effective date of such Registration
Statement, file a final Prospectus with the Commission as required
by Rule 424. The Company acknowledges that the number of shares
initially included in each Registration Statement
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represents a good faith estimate of the maximum
number of shares issuable upon conversion of the Debenture or
otherwise pursuant to the Debenture and exercise of or otherwise
pursuant to the Warrants and shall be amended if not sufficient.
Each Registration Statement (and each amendment or supplement
thereto, and each request for acceleration of effectiveness
thereof) shall be provided to (and subject to the approval of) the
Buyer and its counsel prior to its filing or other submission.
b. PIGGY-BACK REGISTRATIONS. If at any time prior
to the expiration of the Registration Period (as hereinafter
defined) the Company shall determine to file with the Commission a
Registration Statement relating to an offering for its own account
or the account of others under the 1933 Act of any of its equity
securities (other than on Form S-4 or Form S-8 or their then
equivalents relating to equity securities to be issued solely in
connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other
employee benefit plans), the Company shall send to Buyer written
notice of such determination and, if within fifteen (15) days after
the effective date of such notice, the Buyer shall so request in
writing, the Company shall include in such Registration Statement
all or any part of the Registrable Securities which are not then
registered for resale pursuant to a current and effective
Registration Statement, and which the Buyer requests to be
registered, except that if, (i) inclusion of such shares would
result in the offering not being Rule 415 Eligible, or (ii) in
connection with any underwritten public offering for the account of
the Company, the managing underwriter(s) thereof shall impose a
limitation on the number of shares of Common Stock which may be
included in the Registration Statement because, in such
underwriter(s)' judgment, marketing or other factors dictate such
limitation is necessary to facilitate public distribution, then the
Company shall be obligated to include in such Registration
Statement only such limited portion of the Registrable Securities
with respect to which the Buyer has requested inclusion hereunder
(i) as would enable the offering to be Rule 415 Eligible or (ii) as
the underwriter shall permit;
PROVIDED, HOWEVER , that the Company shall not
exclude any Registrable Securities unless the Company has first
excluded all outstanding securities, the holders of which are not
entitled by contract to inclusion of such securities in such
Registration Statement or are not entitled to pro rata inclusion
with the Registrable Securities; and
PROVIDED, FURTHER, HOWEVER , that, after giving
effect to the immediately preceding proviso, any exclusion of
Registrable Securities shall be made pro rata with holders of other
securities having the contractual right to include such securities
in the Registration Statement other than holders of securities
entitled to inclusion of their securities in such Registration
Statement by reason of demand registration rights. No right to
registration of Registrable Securities under this Section 2(b)
shall be construed to limit any registration required under Section
2(a) hereof. If an offering in connection with which the Buyer is
entitled to registration under this Section 2(d) is an underwritten
offering, then the Buyer shall, unless otherwise agreed by the
Company, offer and sell such Registrable Securities in an
underwritten offering using the same underwriter or underwriters
and, subject to the provisions of this Agreement, on the same terms
and conditions as other shares of Common Stock included in such
underwritten offering. Notwithstanding anything to the contrary set
forth herein, the registration rights of the Buyer pursuant to this
Section 2(b) shall only be available in the event the Company fails
to timely file, obtain effectiveness or maintain effectiveness of
any Registration Statement to be filed pursuant to Section 2(a) in
accordance with the terms of this
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Agreement and shall terminate and be of no
further force and effect once the Company satisfies its obligations
under this Agreement.
3.
OBLIGATIONS OF THE COMPANY. In connection with the
registration of the Registrable Securities, the Company shall have
the following obligations:
a. The Company shall prepare promptly, and file with the Commission
as soon as practicable after the date of the Closing under the
Securities Purchase Agreement (the "CLOSING DATE") (but no later
than the Filing Deadline), Registration Statements with respect to
the number of Registrable Securities provided in Section 2(a), and
thereafter use its best efforts to cause each such Registration
Statement relating to Registrable Securities to become effective as
soon as possible after such filing, but in any event shall cause
each such Registration Statement relating to Registrable Securities
to become effective no later than the Effectiveness Deadline, and
shall keep the Registration Statement current and effective
pursuant to Rule 415 at all times until such date as is the earlier
of (i) the date on which all of the Registrable Securities for such
Registration Statement have been sold and (ii) the date on which
all of the Registrable Securities for such Registration Statement
(in the opinion of counsel to the Buyer) may be immediately sold to
the public without registration or restriction (including without
limitation as to volume by each holder thereof) under the 1933 Act
(the "REGISTRATION PERIOD"), which 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 not
misleading.
b. The Company shall prepare and file with the Commission such
amendments (including post-effective amendments) and supplements to
each Registration Statements and the prospectus used in connection
with the Registration Statements as may be necessary to keep the
Registration Statements current and effective at all times during
the Registration Period, 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 the Registration
Statements until such time as all of such Registrable Securities
have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in the
Registration Statements. In the event of a Target Registration
Shortfall (the date of each of which is referred to as a
“Registration Trigger Date” ), or in the event
that on any Trading Day (as defined in the Debenture) (each such
Trading Day is also referred to as a "Registration Trigger
Date" ) the number of shares available under a Registration
Statement filed pursuant to this Agreement is otherwise
insufficient to cover all of the Registrable Securities issued or
issuable upon conversion of the Debenture or otherwise pursuant to
the Debenture (based on the Conversion Price [as defined in the
Debenture] then in effect), exercise of or otherwise pursuant to
the Warrants (based on the Exercise Price [as defined in the
Warrants] then in effect), and otherwise issuable pursuant to the
Transaction Documents, in each case without giving effect to any
limitations on the Buyer' ability to convert the Debenture,
exercise the Warrants or otherwise receive shares of Common Stock
pursuant to the Transaction Documents, the Company shall amend the
Registration Statement, or file a new Registration Statement (on
the short form available therefore, if applicable), or both (each,
an “Additional Registration Statement” ), so as
to cover at least 150% of the total number of Registrable
Securities so issued or issuable (based on the Conversion Prices of
the Debenture, the Exercise Prices of the Warrants, and other
relevant factors on which the Company reasonably elects to rely,
and without giving effect to any limitations on
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conversion contained in the Debenture,
limitations on exercise contained in the Warrants or limitations on
conversion or exercise or other payment of shares contained in the
Securities Purchase Agreement) as of the Registration Trigger Date
(subject to an SEC Share Reduction, if applicable). The Company
shall prepare and file each Additional Registration Statement as
soon as practicable following any Registration Trigger Date, but
not later than the date that is sixty (60) days following the
applicable Registration Trigger Date (the “Additional
Registration Filing Deadline” ) provided that, if Cutback
Shares are required to be included in the Additional Registration
Statement, the “ Additional Registration Filing
Deadline” shall mean the later of (i) the date that is
sixty (60) days after the date substantially all (as such term is
then interpreted by the Commission) of the Registrable Securities
registered under the immediately preceding Registration Statement
are sold and (ii) the date that is six (6) months following the
date of effectiveness of the most recently effective Registration
Statement or Additional Registration Statement filed hereunder. The
Company shall use its best efforts to cause such amendment and/or
new Registration Statement to become effective as soon as
practicable following the filing thereof, but in any event the
Company shall cause such amendment and/or new Registration
Statement to become effective within one hundred eighty (180) days
of the Registration Trigger Date (the “Additional
Registration Effectiveness Deadline”) or as promptly as
practicable in the event the Company is required to increase its
authorized shares.
c. The Company shall furnish to the Buyer and its legal counsel (i)
promptly after the same is prepared and publicly distributed, filed
with the Commission, or received by the Company, one copy of each
Registration Statement and any amendment thereto, each preliminary
prospectus and prospectus and each amendment or supplement thereto,
and, in the case of the Registration Statement referred to in
Section 2(a), each letter written by or on behalf of the Company to
the Commission or the staff of the Commission, and each item of
correspondence from the Commission or the staff of the Commission,
in each case relating to such Registration Statement (other than
any portion of any thereof which contains information for which the
Company has sought confidential treatment), and (ii) such number of
copies of a prospectus, including a preliminary prospectus, and all
amendments and supplements thereto and such other documents as the
Buyer may reasonably request in order to facilitate the disposition
of the Registrable Securities owned by the Buyer. The Company will
immediately notify the Buyer in writing of the effectiveness of
each Registration Statement or any post-effective amendment. The
Company will promptly respond to any and all comments received from
the Commission, with a view towards causing each Registration
Statement or any amendment thereto to be declared effective by the
Commission as soon as practicable and shall file an acceleration
request as soon as practicable, but no later than five (5) business
days (the "Acceleration Request Deadline" ) following the
resolution or clearance of all Commission comments or, if
applicable, following notification by the Commission that any such
Registration Statement or any amendment thereto will not be subject
to review.
d. The Company shall use reasonable efforts to (i) register and
qualify the Registrable Securities covered by the Registration
Statements under such other securities or "blue sky" laws of such
jurisdictions in the United States as the Buyer shall reasonably
request, (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
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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;
e. As promptly as practicable after becoming aware of such event,
the Company shall notify the Buyer of the happening of any event,
of which the Company has knowledge, as a result of which the
prospectus included in any Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and use its best
efforts promptly to prepare a supplement or amendment to any
Registration Statement to correct such untrue statement or
omission, and deliver such number of copies of such supplement or
amendment to the Buyer as the Buyer may reasonably request;
provided that, for not more than twenty (20) consecutive days (or a
total of not more than sixty (60) days in any twelve (12) month
period), the Company may delay the disclosure of material
non-public information concerning the Company (as well as
prospectus or Registration Statement updating) the disclosure of
which at the time is not, in the good faith opinion of the Company,
in the best interests of the Company (an "Allowed Delay" );
provided, further, that the Company shall promptly (i) notify the
Buyer in writing of the existence of (but in no event, without the
prior written consent of the Buyer, shall the Company disclose to
the Buyer any of the facts or circumstances regarding) material
non-public information giving rise to an Allowed Delay and (ii)
advise the Buyer in writing to cease all sales under such
Registration Statement until the end of the Allowed Delay, provided
the above actions are consistent with the requirements of the 1933
Act and/or 1934 Act or other applicable law. Upon expiration of the
Allowed Delay, the Company shall again be bound by the first
sentence of this Section 3(e) with respect to the information
giving rise thereto. Nothing herein relieves the obligations set
forth in the Debenture or the Warrants relative to Registration
Failure Liquidated Damages or payments of the Default Amount
pursuant to Events of Default.
f. The Company shall use its best efforts to prevent the issuance
of any stop order or other suspension of effectiveness of any
Registration Statement, and, if such an order is issued, to obtain
the withdrawal of such order at the earliest possible moment and to
notify the Buyer who holds Registrable Securities being sold (or,
in the event of an underwritten offering, the managing
underwriters) of the issuance of such order and the resolution
thereof.
g. The Company shall permit a single firm of counsel designated by
the Buyer to review such Registration Statement and all amendments
and supplements thereto (as well as all requests for acceleration
or effectiveness thereof), at Buyer’s own cost, a reasonable
period of time prior to their filing with the Commission (not less
than three (3) business days but not more than ten (10) business
days) and not file any document in a form to which such counsel
reasonably objects and will not request acceleration of such
Registration Statement without prior notice to such counsel.
h. The Company shall hold in confidence and not make any disclosure
of information concerning the Buyer 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 misstatement or
omission in any Registration Statement, (iii) the release of such
information is ordered pursuant to a subpoena or other order from a
court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other
than by disclosure in violation of this or any other agreement. The
Company agrees that it
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shall, upon learning that disclosure of such
information concerning the Buyer is sought in or by a court or
governmental body of competent jurisdiction or through other means,
give prompt notice to the Buyer prior to making such disclosure,
and allow the Buyer, at its expense, to undertake appropriate
action to prevent disclosure of, or to obtain a protective order
for, such information.
i. If the Company becomes el
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