Exhibit 10.4
REGISTRATION RIGHTS
AGREEMENT
This REGISTRATION RIGHTS
AGREEMENT (this “ Agreement ”), dated as of
September 30, 2008, is entered into by and among Unigene
Laboratories, Inc., a Delaware corporation (the “
Company ”), and the lender(s) listed on the
Schedule of Buyers attached hereto (each, a “
Buyer ” and collectively, the “ Buyers
”).
WHEREAS:
A. In connection with that certain
Financing Agreement, dated as of even date herewith, by and among
the Company, Victory Park Management, LLC, as administrative agent
and collateral agent, and the Buyers (the “ Financing
Agreement ”), the Company has agreed, upon the terms and
subject to the conditions of the Financing Agreement, to issue and
sell on the date hereof to each Buyer certain shares of the
Company’s common stock, par value $0.01 per share (the
“ Common Stock ”).
B. To induce the Buyers to execute
and deliver the Financing 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.
C. This Agreement constitutes a
Transaction Document (as defined in the Financing
Agreement).
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 each of the Buyers 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 a Buyer, any permitted transferee of the shares of Common
Stock to whom a 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 permitted transferee thereof to whom
a transferee of the shares of Common Stock 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) “ Lock-Up Agreement
” means that certain Lock-Up Agreement, dated as of even date
herewith, by and among the Company and the Buyers.
(f) “ register ,”
“ registered ” and “ registration
” refer to a registration effected by preparing and filing
one or more Registration Statements 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.
(g) “ Registrable
Securities ” means (i) all of the shares of Common
Stock issued under the Financing Agreement and (ii) any shares
of capital stock issued or issuable in exchange for or with respect
to such shares as a result of any stock split, stock dividend,
recapitalization, exchange, adjustment or similar event or
otherwise.
(h) “ Registration
Statement ” means a registration statement or
registration statements of the Company filed under the 1933 Act
covering the Registrable Securities.
(i) “ Required Holders
” means the holders of at least seventy percent (70%) of
the Registrable Securities.
(j) “ Rule 415 ”
means Rule 415 under the 1933 Act or any successor rule providing
for offering securities on a continuous or delayed
basis.
(k) “ 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 Financing Agreement.
2. REGISTRATION .
(a) Mandatory Registration .
At any time after the earlier of (i) the expiration of the
Lock-Up Period (as such term is defined in the Lock-Up Agreement)
and (ii) the termination of the Lock-Up Agreement, in either
case if the Investors are not able to sell or transfer all of the
Registrable Securities without restriction or condition pursuant to
Rule 144 (or successor thereto) promulgated under the 1933 Act,
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 a
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 another appropriate form reasonably acceptable to
the Required Holders, subject to the provisions of
Section 2(c) . The 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
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Registration Statement is initially filed with
the SEC and shall contain the “Selling Stockholders”
and “Plan of Distribution” sections 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 a.m. (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.
In no event shall the Company
include any securities other than Registrable Securities on any
Registration Statement without the prior written consent of the
Required Holders.
(b) Legal Counsel . Subject
to Section 5 hereof, the holders of 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 Latham & Watkins 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’ respective obligations
under this Agreement.
(c) Ineligibility for Form
S-3 . In the event that Form S-3 is not available to the
Company 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.
(d) Effect of
Failure to File and Obtain and Maintain Effectiveness of
Registration Statement . If (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
thirtieth (30 th ) day after the Filing
Deadline (a “ Filing Failure ”) or
(B) filed with the SEC but not declared effective by the SEC
on or before the thirtieth (30 th ) day after 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, a failure 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 a failure to register a
sufficient number of shares of Common Stock) (a “
Maintenance Failure ”), then, as partial relief for
the damages to any holder of Registrable Securities by reason of
any
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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 of
an amount in cash equal to two percent (2%) of the aggregate
value of such holder’s Registrable Securities (such value
being determined by multiplying the number of such securities by
the greater of (I) the then-current market price of such
securities and (II) $0.88) on each of the following dates:
(x) 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 or until the date two (2) years after the Closing Date;
(y) 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 or until the date two (2) years after the Closing Date;
and (z) 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 Maintenance Failure is cured
or until the date two (2) years after the Closing Date. The
payments to which a holder shall be entitled pursuant to this
Section 2(d) 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. 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.
(e) 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(e) shall relieve the Company of its
obligations to register Registrable Securities pursuant to
Section 2(a) unless all Registrable Securities have
been so registered and the related Registration Statement has not
been withdrawn and remains effective pursuant to Rule 415 until the
expiration of the Registration Period.
(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(e) by
giving written notice to the Company of such withdrawal. Subject to
Section 2(e)(iii) 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
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number of Registrable Securities that the
Investors and any other Persons intend to include in the offering
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 material
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 (C) third , pro
rata among any other holders of Common Stock who have requested
participation in such underwritten offering. 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 such
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.
(f) Selection of Underwriters
. If the registration pursuant to Section 2(a) of this
Agreement is in the form of an underwritten offering, the holders
of at least a majority of the Registrable Securities to be
registered may select and obtain a recognized investment bank or
investment bankers and manager or managers that will administer the
offering; provided that such investment banker(s) and
manager(s) must be reasonably acceptable to the Company. In such
event, the Company will enter into such customary agreements
(including an underwriting agreement in customary form for primary
offerings) and take all such other actions as the holders of at
least a majority of the Registrable Securities to be registered
reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities.
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 ten
(10) Business Days. The Company shall submit to the SEC,
within four (4) 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 or condition 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
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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 in order to make the statements
therein, in the light of the circumstances under 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 three (3) 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
three (3) Business Days after receipt thereof shall be deemed
approval of same. 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 (or any successor) 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).
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(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, any underwriter of such registered offering 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 such 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 the Registration Statement or the initiation of
any proceedings for that purpose; (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; or
(iv) any event or circumstance which necessitates the making
of any changes to the Registration Statement or related 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 omit
to state a material fact required to be stated therein or necessary
to make the statements made therein not misleading and, 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 made therein, in the light of the circumstances
under which they were made, not misleading ( provided , that
in no event shall such notice contain any material non-public
information), and, subject to Section 3(q) , promptly
prepare a supplement or amendment to such Registration Statement to
correct such untrue statement or omission, and deliver a copy of
such supplement or amendment to Legal Counsel, any underwriter of
such registered offering and each Investor (or such other number of
copies as Legal Counsel, such underwriter or such Investor may
reasonably
7
request). The Company shall also promptly notify
Legal Counsel, any underwriter of such registered offering and each
Investor in writing (i) when a 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) and (ii) of the
Company’s reasonable determination that a post-effective
amendment to a Registration Statement would be
appropriate.
(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 or suspension 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 laws 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 such 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 (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 such Investor’s due diligence
requirements, if any, the Company shall make available for
inspection by (i) any Investor, (ii) Legal Counsel,
(iii) any underwriter participating in any disposition
pursuant to the Registration Statement and (iv) 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 such
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
that is subject to its own confidentiality agreement) 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.
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(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 misstatement or omission in any Registration
Statement, (iii) the release of such information is ordered
pursuant to a final, non-appealable subpoena or order from a court
or government body of competent jurisdiction, or (iv) such
information has been made generally available to the public other
than by disclosure in violation of this Agreement or any other
Transaction Document. The Company agrees that it shall, upon
learning that disclosure of such information concerning an Investor
is sought in or by a court or government body of competent
jurisdiction or through other means, give prompt written notice to
such Investor and allow such Investor, at the Investor’s
expense, to undertake appropriate action to prevent disclosure of,
or to obtain a protective order for, such information.
(k) The Company shall use its
reasonable best efforts to cause all the Registrable Securities
covered by the Registration Statement to be listed upon the Primary
Market. The Company shall pay all fees and expenses in connection
with satisfying its obligation under this Section 3(k)
.
(l) The Company shall cooperate with
the Investors who hold Registrable Securities being offered and, to
the extent applicable pursuant to the Transaction Documents,
facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legend) representing the Registrable
Securities to be offered pursuant to a Registration Statement and
enable such certificates to be in such denominations or amounts, as
the case may be, as the Investors may reasonably request and
registered in such names as the Investors may request.
(m) If requested by an Investor and
if the Company’s counsel deems such inclusion not
inconsistent with the 1933 Act or the 1934 Act or other applicable
law, the Company shall (i) as soon as practicable incorporate
in a prospectus supplement or post-effective amendment such
information as an Investor reasonably requests to be included
therein relating to the sale and distribution of Registrable
Securities, including, without limitation, information with respect
to the number of Registrable Securities being offered or sold, the
purchase price being paid therefor and any other terms of the
offering of the Registrable Securities to be sold in such offering;
(ii) as soon as practicable make all required filings of such
prospectus supplement or post-effective amendment after being
notified of the matters to be incorporated in such prospectus
supplement or post-effective amendment; and (iii) as soon as
practicable supplement or make amendments to any Registration
Statement if reasonably requested by an Investor holding any
Registrable Securities.
(n) The Company shall make generally
available to its security holders as soon as practicable, but not
later than ninety (90) days after the close of the period
covered thereby, an earnings statement (in form complying with, and
in the manner provided by, the provisions of Rul
