Amended and
Restated
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”). This amended and
restated Agreement is dated as of December 31, 2008 and amends and
restates the Registration Rights Agreement originally dated as of
June 13, 2008.
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.
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“Additional
Registration Effectiveness Deadline” shall have the meaning ascribed to
it in Section 3(b) below.
“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.
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“FINRA”
shall mean the
Financial Industry Regulatory Authority (f/k/a the National
Association of Securities Dealers, Inc.).
“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.
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“Registration
Failure Liquidated Damages” shall have the meaning set forth in
Section 4 below.
"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.
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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 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 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 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 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
Warrant Shares 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
represents a good faith estimate of the maximum number of shares
issuable upon 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.
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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;
c.
SUPPLIMENTARY REGISTRATION. By not later than June 1,
2009, the Company shall prepare and file with the Commission a
Registration 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 “Supplementary 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 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 Supplementary
Registration Statement shall be no less than 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 exercise the Warrants, less
the number of such shares that are either already registered for
resale or are eligible for immediate sale under Rule 144, without
volume limitations (collectively, the “Target
Supplementary 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
Warrant Shares 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 in the
Supplementary Registration 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 Supplementary Registration Amount (a
“Target Registration Shortfall”), then the unregistered
portion of the Target Supplementary Registration Amount (the
“Target Supplementary Registration Shortfall
Amount” ) shall be included in the next Additional
Registration Statement (in accordance with Section 3(b) below).
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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
represents a good faith estimate of the maximum number of shares
issuable upon 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.
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 Agreement and
shall terminate and be of no further force and effect once the
Company satisfies its obligations under this Agreement.
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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 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 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 100% of the total number of Registrable Securities
so issued or issuable (based on 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 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.
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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 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;
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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
here
