Registration Procedures, Rights and Obligations. The procedures to be followed by the Company and the Holders, and the respective rights and obligations of the Company and the Holders, with respect to the preparation, filing and effectiveness of the Demand Registration Statement and the distribution of Registrable Securities pursuant thereto, are as follows: (a) The Holders shall be entitled to make one Demand Request hereunder which shall result in actual registration of the Registrable Securities; provided, however, that no such Demand Request may be made (i) prior to the date which is eleven (11) months from the date hereof, or (ii) that requests to register less than fifty percent (50%) of the Registrable Securities (as adjusted for any stock splits, stock dividend, stock combination or other reclassification). (b) In the event of a Demand Request that: (i) does not result in the corresponding Demand Registration Statement being declared effective by the SEC; (ii) does not result in the corresponding Demand Registration Statement remaining effective for the applicable period set forth in Section 4.2(c); (iii) is withdrawn by the Holder(s) following the imposition of a stop order, injunction or other order or requirement of the SEC with respect to the corresponding Demand Registration Statement; or (iv) is withdrawn by the Holder(s) as a result of the exercise by the Company of its suspension rights pursuant to Sections 4.2(e) or (f) hereof; the Demand Request shall not be counted against the one (1) Demand Request to which the Holders are entitled. Any Demand Request that is withdrawn by the Holder(s) for any reason other than as set forth in the previous sentence shall count for purposes of determining the Demand Request to which such Holder(s) is entitled. (c) The Company shall use its commercially reasonable efforts to cause the Demand Registration Statement to be declared effective promptly and to keep such Demand Registration Statement continuously effective until the earlier to occur of: (i) the sale or other disposition of the Registrable Securities so registered; (ii) twelve (12) months after the effective date of such Demand Registration Statement; and (iii) the termination of the registration rights of the Holders pursuant to Section 4.7 hereof. The Company shall prepare and file with the SEC such amendments and supplements to the Demand Registration Statement and prospectus used in connection therewith as may be necessary to make and to keep such Demand Registration Statement effective and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities proposed to be distributed pursuant thereto until the earlier to occur of: (i) the sale or other disposition of the Registrable Securities so registered; (ii) twelve (12) months after the effective date of such Demand Registration Statement; and (iii) the termination of the Holders' registration rights pursuant to Section 4.7 hereof. The Company shall, to the extent practicable, at least five (5) Business Days prior to filing any registration statement or prospectus or any amendments or supplements thereto, furnish to the Holder(s) and its counsel copies of all such documents proposed to be filed and the Holder(s) shall have the opportunity to comment on any information pertaining solely to it and its plan of distribution that is contained therein and the Company shall make the corrections reasonably requested by the Holder(s) with respect to such information prior to filing the Demand Registration Statement or amendment or supplement thereto. (d) The Holder(s) shall not be entitled to offer or sell any securities pursuant to a Demand Registration Statement unless and until the Company has made all required filings with the SEC with respect to the distribution of the Registrable Securities, such filings have become effective, and the Company has notified the Holder(s) of the foregoing and that no Suspension Condition then exists. (e) Notwithstanding any other provision of this Agreement, in the event that the Company receives the Demand Request, at a time when the Company (i) shall have filed, or has a bona fide intention to file, a registration statement with respect to a proposed public offering of equity or equity-linked securities or (ii) has commenced, or has a bona fide intention to commence, a public offering of equity or equity-linked securities pursuant to an existing effective shelf or other registration statement, then the Company shall be entitled to defer the filing of any Demand Registration Statement in accordance with Section 4.2(g) hereof. (f) Notwithstanding any other provision of this Agreement, in the event that the Company's Board of Directors determines that: (x) (i) non- public material information regarding the Company exists, the immediate disclosure of which would be significantly disadvantageous to the Company; (ii) the prospectus constituting a part of any Demand Registration Statement covering the distribution of any Registrable Securities contains 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, in the light of the circumstances under which they were made, not misleading; or (iii) an offering of Registrable Securities would materially and adversely affect or interfere with any proposed material acquisition, disposition or other similar corporate transaction or event involving the Company (each of the events or conditions referred to in clauses (i), (ii) and (iii) of this sentence is hereinafter referred to as a "Suspension Condition") and (y) the Company furnishes to the Holder(s) a certificate signed by the Chief Executive Officer or the Chief Financial Officer of the Company stating that the Company's Board of Directors has determined that a Suspension Condition exists and providing an approximation of the anticipated delay (and Holder(s) acknowledge(s) that any such information shall be deemed to be Confidential Information of the Company), then the Company shall have the right to suspend the filing or effectiveness of the Demand Registration Statement or to suspend any distribution of Registrable Securities pursuant thereto for so long as such Suspension Condition exists. The Company will as promptly as practicable provide written notice to the Holder(s) when a Suspension Condition arises and when it ceases to exist. Upon receipt of notice from the Company of the existence of any Suspension Condition, the Holder(s) shall forthwith discontinue efforts to: (i) file or cause the Demand Registration Statement to be declared effective by the SEC (in the event that such Demand Registration Statement has not been filed, or has been filed but not declared effective, at the time the Holder(s) receive(s) notice that a Suspension Condition has arisen); or (ii) offer or sell Registrable Securities (in the event that such Demand Registration Statement has been declared effective at the time the Holder(s) receive(s) notice that a Suspension Condition has arisen). In the event that the Holder(s) had previously commenced or was about to commence the distribution of Registrable Securities pursuant to a prospectus under an effective Demand Registration Statement then the Company shall, as promptly as practicable after the Suspension Condition ceases to exist, make available to the Holder(s) an amendment or supplement to such prospectus. If so directed by the Company, the Holder(s) shall deliver to the Company all copies, other than permanent file copies then in the Holders' possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. (g) Notwithstanding any other provision of this Agreement, the Company shall not be permitted to postpone (i) the filing or effectiveness of the Demand Registration Statement or (ii) the distribution of the Registrable Securities pursuant to the effective Demand Registration Statement pursuant to Sections 4.2(e) or (f) hereof, for an aggregate period of more than sixty (60) days in any three hundred and sixty-five day (365) day period; provided, however, that no single such postponement period shall last for more than thirty (30) consecutive days. (h) The Company shall promptly notify the Holder(s) of any stop order, injunction or other order or requirement of the SEC issued or, to the Company's knowledge, threatened to be issued by the SEC with respect to any Demand Registration Statement and will use its commercially reasonable efforts to prevent the entry of such stop order, injunction or other order or requirement of the SEC or to remove it if entered at the earliest possible date. (i) The Company shall furnish to the Holder(s) such number of copies of any prospectus, including any preliminary prospectus and any amended or supplemented prospectus (including in each case all exhibits, but subject to any applicable confidential treatment thereof), in conformity with the requirements of the Securities Act, as the Holder(s) shall reasonably request in order to effect the offering and sale of any Registrable Securities to be offered and sold. The Company shall use its commercially reasonable efforts to provide to the Holder(s) or any underwriter participating in any disposition pursuant to the Demand Registration Statement (and any attorney, accountant or other agent retained by such Representative or any such underwriter for the purpose of effecting the Demand Registration Statement) relevant financial and other corporate records of the Company reasonably necessary for the Holder(s) to effect the registration of the Registrable Securities pursuant to the Demand Registration Statement. (j) The Company shall use its commercially reasonable efforts to register or qualify the Registrable Securities covered by the Demand Registration Statement under the state securities or "blue sky" laws of such jurisdictions as the Holder(s) shall reasonably request, to maintain any such registration or qualification in effect for so long as such Demand Registration Statement remains in effect, and to take any other action which may be reasonably necessary to enable the Holder(s) to consummate the disposition in such jurisdiction of the Registrable Securities owned by the Holder(s) until the earlier to occur of: (i) the sale or other disposition of the Registrable Securities so registered; (ii) twelve (12) months after the effective date of such Demand Registration Statement; and (iii) the termination of the registration rights of the Holder(s) pursuant to Section 4.7 hereof; provided, however, that the Company shall not be required to take any action that would subject it to the general jurisdiction of the courts of any jurisdiction in which it is not so subject or to qualify as a foreign corporation in any jurisdiction where the Company is not so qualified. (k) The Company shall use its commercially reasonable efforts to furnish, at the Holders' request, if the method of distribution is by means of an underwritten offering, on the date that the shares of Registrable Securities are delivered to the underwriters for sale pursuant to such registration, or if such Registrable Securities are not being sold through underwriters, on the date that the Demand Registration Statement with respect to such shares of Registrable Securities becomes effective, (1) a signed opinion (in customary form for a transaction of such nature and size), dated such date, of the independent legal counsel representing the Company, addressed to the underwriters, if any, and if such Registrable Securities are not being sold through underwriters, then to the Holder(s); and (2) letters dated such date and the date the offering is priced, from the independent certified public accountants of the Company, addressed to the underwriters, if any, and if such Registrable Securities are not being sold through underwriters, then to the Holder(s) and, if such accountants refuse to deliver such letters to such Holder(s), then to the Company stating that they are independent certified public accountants within the meaning of the Securities Act and covering such financial matters as would be customary in such a transaction. (l) The Company shall use its commercially reasonable efforts to enter into customary agreements (including if the method of distribution is by means of an underwritten offering, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities as contemplated herein. (m) The Company shall use its commercially reasonable efforts to cause the Registrable Securities covered by the Demand Registration Statement to be listed on each securities exchange or quotation system on which similar securities issued by the Company are listed or traded. (n) The Company shall use its commercially reasonable efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of such Demand Registration Statement. (o) The Company shall, in connection with any underwritten offering of the Registrable Securities, use its commercially reasonable efforts to make appropriate officers of the Company available to the Holder(s) for meetings with prospective purchasers of the Registrable Securities and prepare and present to potential investors customary "road show" material in each case in accordance with the recommendations of the underwriters and in all respects in a manner consistent with the resale of securities in an offering of a similar size to such offering of the Registrable Securities. (p) The Company shall use its commercially reasonable efforts to procure the cooperation of the Company's transfer agent in settling any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by the Holder(s) or the underwriters. (q) In the event a Holder has notified the Company that the method of distribution pursuant to the Demand Request is by means of an underwritten offering, the underwriter or underwriters shall be selected by the Company and shall be approved by the Holder(s), which approval shall not be unreasonably withheld or delayed, provided, (i) that all of the representations and warranties by the Company to and for the benefit of such underwriters shall also be made to and for the benefit of the Holder(s), (ii) that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of the Holder(s), and (iii) that the Holder(s) shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements (x) that are customary for a transaction of such nature, (y) regarding the Holder(s), the Registrable Securities and the Holders' intended method of distribution, and (z) any other representations required by law. Subject to the foregoing, the Holder(s) shall enter into an underwriting agreement in customary form with the underwriter or underwriters. If the Holder(s) disapprove(s) of the terms of the underwriting, the Holder(s) may elect to withdraw all its Registrable Securities by written notice to the Company and the managing underwriter. The securities so withdrawn shall also be withdrawn from registration. (r) The Company shall not hereafter enter into any agreement with respect to its securities, which conflicts with the rights granted to the Holders in this Agreement.

Appears in 1 contract

Samples: Standstill and Registration Rights Agreement (Cell Genesys Inc)

Registration Procedures, Rights and Obligations. The procedures to be followed by ~~the Company~~ Source and ~~the Holders~~Stockholder, and the respective rights and obligations of ~~the Company~~ Source and ~~the Holders~~Stockholder, with respect to the preparation, filing and effectiveness of the Demand Registration Statement and the distribution of Registrable Securities pursuant thereto, are as follows: (a) ~~The Holders~~ Stockholder shall not be entitled to ~~make one~~ make, in the aggregate, more than three (3) Demand ~~Request hereunder which shall result in actual registration of the Registrable Securities~~Requests; provided, however, that no such Demand Request may be made (i) prior to the date which is eleven (11) months from the date hereof, or (ii) that requests to register less than fifty percent (50%) of the Registrable Securities (as adjusted for any ~~stock splits, stock dividend, stock combination or other reclassification). (b) In the event of a~~ Demand Request that: (iA) does not result in the corresponding Demand Registration Statement being declared effective by the SEC; (~~ii) does not result in the corresponding Demand Registration Statement remaining effective for the applicable period set forth in Section 4.2(c); (iii~~B) is withdrawn by ~~the Holder(s)~~ Stockholder following the imposition of ~~a stop order, injunction or other~~ an order ~~or requirement of~~ by the SEC with respect to the corresponding Demand Registration Statement; or (ivC) is withdrawn by at the ~~Holder(s)~~ request of Stockholder as a result of the exercise by ~~the Company~~ Source of its suspension rights pursuant to Sections ~~4.2(e~~4.3(e) or the occurrence of events set forth in Section 4.3(f) or 4.3(g); or (fD) ~~hereof;~~ if the ~~Demand Request~~ transactions contemplated in an underwriting agreement entered into in connection with such registration are not consummated, other than by reason of some act or omission by Stockholder, shall not ~~be counted against the one (1)~~ count as a Demand ~~Request to which the Holders are entitled~~Request. Any Demand Request that is withdrawn by ~~the Holder(s)~~ Stockholder for any reason other than as set forth in the previous sentence shall count ~~for purposes of determining the~~ as a Demand Request. No Demand Request ~~to which such Holder(s) is entitled~~shall require that a Demand Registration Statement be declared effective until after the expiration of the Initial Lock-Up Period. (cb) The Company shall use its commercially reasonable efforts to cause the Demand Registration Statement to be declared effective promptly and to keep such Demand Registration Statement continuously effective until the earlier to occur of: (i) the sale or other disposition of the Registrable Securities so registered; (ii) twelve (12) months after the effective date of such Demand Registration Statement; and (iii) the termination of the registration rights of the Holders pursuant to Section 4.7 hereof. The Company Source shall prepare and file with the SEC such amendments and supplements to the Demand Registration Statement and prospectus used in connection therewith as may be necessary to ~~make and to keep such Demand Registration Statement effective and to~~ comply with the provisions of the Securities Act with respect to the sale or other disposition of all Demand Registrable Securities proposed to be distributed pursuant ~~thereto until the earlier~~ to occur of: (i) the sale or other disposition of the Registrable Securities so registered; (ii) twelve (12) months after the effective date of such Demand Registration Statement; and (iii) the termination of the Holders' registration rights pursuant to Section 4.7 hereof. The Company shall, to the extent practicable, at least five (5) Business Days prior to filing any registration statement or prospectus or any amendments or supplements thereto, furnish to the Holder(s) and its counsel copies of all such documents proposed to be filed and the Holder(s) shall have the opportunity to comment on any information pertaining solely to it and its plan of distribution that is contained therein and the Company shall make the corrections reasonably requested by the Holder(s) with respect to such information prior to filing the Demand Registration Statement ~~or amendment or supplement thereto~~until such time as all Demand Registrable Securities registered pursuant to the Demand Registration Statement have been sold. (c) In connection with an underwritten offering pursuant to the Demand Registration Statement, Stockholder shall select a nationally recognized investment banking firm to serve as lead manager of such offering. Such manager is hereinafter referred to as the “Demand Managing Underwriter.” Source shall, together with Stockholder, enter into an underwriting agreement with the Demand Managing Underwriter, which agreement may contain representations, warranties, indemnities and agreements then customarily included by an issuer in underwriting agreements with respect to secondary distributions under demand registration statements. (d) The Holder(s) shall not be entitled to offer or sell any securities pursuant to a Demand Registration Statement unless and until the Company has made all required filings with the SEC with respect to the distribution of the Registrable Securities, such filings have become effective, and the Company has notified the Holder(s) of the foregoing and that no Suspension Condition then exists. (e) Notwithstanding any other provision of this Agreement, the number of Demand Registrable Securities proposed to be distributed by Stockholder pursuant to an underwritten offering may be limited by the Demand Managing Underwriter if it shall advise Source in writing (with a copy of any such notice to Stockholder) that, in its opinion, the distribution of all or a specified portion of the Demand Registrable Shares will affect the price, timing or distribution of such Securities (a “Demand Market Cut-Back”). The securities that are entitled to be included in the underwritten offering shall be allocated first to Stockholder and thereafter among other holders of Source Securities requesting to include such Source Securities in such registration statement based on the pro rata percentage of Source Securities held by such holders. (e) Notwithstanding any other provisions of this Agreement, in the event that ~~the Company~~ Source receives ~~the~~ a Demand ~~Request,~~ Request at a time when ~~the Company~~ Source (i) shall have filed, or has a bona fide intention to file, a registration statement with respect to a proposed public offering of equity or equity-linked ~~securities~~ securities, or (ii) has commenced, or has a bona fide intention to commence, a public offering of equity or equity-linked securities pursuant to an existing effective shelf or other registration statement, then ~~the Company~~ Source shall be entitled to ~~defer~~ suspend, for a period of up to ninety (90) days after the receipt by Source of such Demand Request, the filing of ~~any~~ the Demand Registration Statement. If Source shall so postpone the filing of the Registration Statement and if Stockholder within thirty days after receipt of the notice of postponement advises Source in ~~accordance~~ writing that such Stockholder has determined to withdraw such request for registration, then such Demand Registration shall be deemed to be withdrawn and Source shall pay all expense in connection with such withdrawn request. Notwithstanding the foregoing, Source shall not be permitted to defer requested registration in reliance on this Section ~~4.2(g~~4.2(e) ~~hereof~~more than once in any twelve month period. (f) Notwithstanding any other provision of this Agreement, in the event that ~~the Company's Board of Directors~~ Source determines ~~that: (x)~~ that (i) ~~non-~~ non-public material information regarding ~~the Company~~ Source exists, the immediate disclosure of which would be ~~significantly disadvantageous~~ detrimental to ~~the Company~~Source; (ii) the prospectus constituting a part of any ~~Demand Registration Statement~~ registration statement covering the distribution of any Registrable Securities, at a time when a prospectus relating thereto is required to be delivered under the Securities Act, contains 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, in the light of the circumstances under which they were made, not misleading; or (iii) an offering of Registrable Securities would materially ~~and adversely affect or~~ interfere with any proposed material acquisition, disposition or other similar corporate transaction or event involving ~~the Company~~ Source (each of the events or conditions referred to in clauses (i), (ii) and (iii) of this sentence is hereinafter referred to as a "“Suspension Condition") and (y) the Company furnishes to the Holder(s) a certificate signed by the Chief Executive Officer or the Chief Financial Officer of the Company stating that the Company's Board of Directors has determined that a Suspension Condition exists and providing an approximation of the anticipated delay (and Holder(s) acknowledge(s) that any such information shall be deemed to be Confidential Information of the Company”), then ~~the Company~~ Source shall have the right to ~~suspend~~ suspend, for a maximum period of 30 days (the “Suspension Period”), (A) the filing or effectiveness of ~~the~~ any Demand Registration Statement or ~~to suspend~~ (B) any distribution of Registrable Securities pursuant ~~thereto for so long as such Suspension Condition exists~~to any effective registration statement. ~~The Company~~ Source will as promptly as practicable provide written notice to ~~the Holder(s)~~ Stockholder when a Suspension Condition arises and when it ceases to exist. Upon receipt of notice from ~~the Company~~ Source of the existence of any Suspension Condition, ~~the Holder(s)~~ Stockholder shall forthwith discontinue efforts during the Suspension Period to: (i) cause Source to file or cause ~~the~~ any Demand Registration Statement to be declared effective by the SEC (in the event that such Demand Registration Statement has not been filed, or has been filed but not declared effective, at the time ~~the Holder(s) receive(s)~~ Stockholder receives notice that a Suspension Condition has arisen); or (ii) offer or sell Registrable Securities (in the event that such ~~Demand Registration Statement~~ registration statement has been declared effective at the time ~~the Holder(s) receive(s)~~ Stockholder receives notice that a Suspension Condition has arisen). In the event that ~~the Holder(s) had~~ Stockholder has previously commenced or was about to commence the distribution of Registrable Securities pursuant to a prospectus under an effective ~~Demand Registration Statement~~ registration statement, then ~~the Company~~ Source shall, as promptly as ~~practicable after the Suspension Condition ceases to exist~~practicable, make available to ~~the Holder(s~~Stockholder (and to each underwriter, if any, participating in such distribution) an amendment or supplement to such prospectus. If so directed by ~~the Company~~Source, ~~the Holder(s)~~ Stockholder shall deliver to ~~the Company~~ Source all copies, other than permanent file copies then in ~~the Holders'~~ Stockholder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. Notwithstanding the foregoing, Source shall not be permitted to defer requested registration in reliance on this Section 4.2(f) more than five times, and the aggregate Suspension Period for all requests shall not exceed forty-five days in any twelve month period. (g) Notwithstanding any other provision of this Agreement, the Company shall not be permitted to postpone (i) the filing or effectiveness of the Demand Registration Statement or (ii) the distribution of the Registrable Securities pursuant to the effective Demand Registration Statement pursuant to Sections 4.2(e) or (f) hereof, for an aggregate period of more than sixty (60) days in any three hundred and sixty-five day (365) day period; provided, however, that no single such postponement period shall last for more than thirty (30) consecutive days. (h) The Company Source shall promptly notify ~~the Holder(s)~~ Stockholder of any stop ~~order, injunction or other~~ order ~~or requirement of the SEC~~ issued or, to ~~the Company's~~ Source’s knowledge, threatened to be issued by the SEC with respect to any ~~Demand Registration Statement~~ registration statement covering Registrable Securities, and will use its commercially reasonable efforts to prevent the entry of such stop ~~order, injunction or other~~ order ~~or requirement of the SEC~~ or to remove it if entered at the earliest possible date. (ih) ~~The Company~~ Source shall furnish to ~~the Holder(s~~Stockholder (and any underwriter in connection with any underwritten offering) such number of copies of any ~~prospectus,~~ prospectus (including any preliminary prospectus and any amended or supplemented ~~prospectus (including in each case all exhibits, but subject to any applicable confidential treatment thereof~~prospectus), in conformity with the requirements of the Securities Act, as ~~the Holder(s~~Stockholder (and such underwriters) shall reasonably request in order to effect the offering and sale of any Registrable Securities to be offered and sold. The Company shall use its commercially reasonable efforts to provide to the Holder(s) or any underwriter participating in any disposition pursuant to the Demand Registration Statement (and any attorney, accountant or other agent retained by such Representative or any such underwriter for the purpose of effecting the Demand Registration Statement) relevant financial and other corporate records of the Company reasonably necessary for the Holder(s) to effect the registration of the Registrable Securities pursuant to the Demand Registration Statement. (ji) ~~The Company~~ Source shall use ~~its~~ commercially reasonable efforts to register or qualify the Demand Registrable Securities covered by the Demand Registration Statement under the state securities or "“blue sky" ” laws of such ~~jurisdictions~~ states as ~~the Holder(s) shall~~ Stockholder may reasonably request, to maintain any such registration or qualification in effect for so long as such Demand Registration Statement remains in effect, and to take any other action which may be reasonably necessary to enable the Holder(s) to consummate the disposition in such jurisdiction of the Registrable Securities owned by the Holder(s) until the earlier to occur of: (i) the sale or other disposition of the Registrable Securities so registered; (ii) twelve (12) months after the effective date of such Demand Registration Statement; and (iii) the termination of the registration rights of the Holder(s) pursuant to Section 4.7 hereof; provided, however, that ~~the Company~~ Source shall not be required to take any action that would subject it to the general jurisdiction of the courts of any jurisdiction in which it is not so subject or to qualify as a foreign corporation in any jurisdiction where ~~the Company~~ Source is not so qualified. (kj) ~~The Company~~ Source shall ~~use its commercially reasonable efforts~~ furnish to ~~furnish~~Stockholder and to each underwriter engaged in the underwritten offering of Demand Registrable Securities, ~~at the Holders' request~~a signed counterpart, ~~if the method~~ addressed to Stockholder or such underwriter, of ~~distribution is by means~~ (i) an opinion or opinions of ~~an underwritten offering, on the date that the shares of Registrable Securities are delivered~~ counsel to the underwriters for sale pursuant to such registration, or if such Registrable Securities are not being sold through underwriters, on the date that the Demand Registration Statement with respect to such shares of Registrable Securities becomes effective, Source and (1ii) a ~~signed opinion (~~comfort letter or comfort letters from Source’s independent public accountants, each in customary form for a transaction of such nature and size), dated such date, of the independent legal counsel representing the Company, addressed to the underwriters, if any, and if such Registrable Securities are not being sold through underwriters, then to the Holder(s); and (2) letters dated such date and the date the offering is priced, from the independent certified public accountants of the Company, addressed to the underwriters, if any, and if such Registrable Securities are not being sold through underwriters, then to the Holder(s) and, if such accountants refuse to deliver such letters to such Holder(s), then to the Company stating that they are independent certified public accountants within the meaning of the Securities Act and covering such ~~financial~~ matters of the type customarily covered by opinions or comfort letters, as ~~would be customary in such a transaction~~the case may be, as Stockholder or the Demand Managing Underwriter may reasonably request. (lk) ~~The Company~~ Source shall use its commercially reasonable efforts to enter into customary agreements (including if the method of distribution is by means of an underwritten offering, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities as contemplated herein. (m) The Company shall use its commercially reasonable efforts to cause ~~the~~ all Demand Registrable Securities ~~covered by the Demand Registration Statement~~ to be listed on each securities exchange ~~or quotation system~~ on which similar securities ~~issued by the Company~~ of Source are ~~listed or traded~~then listed. (nl) ~~The Company~~ Source shall take all such other actions reasonably necessary to permit the Demand Registrable Securities held by Stockholder to be registered and disposed of in accordance with the methods of disposition described herein. (m) Upon request from Stockholder, Source shall use ~~its~~ commercially reasonable efforts to ~~prevent~~ assist in the ~~issuance or obtain the withdrawal of any order suspending the effectiveness of such Demand Registration Statement. (o) The Company shall, in connection with any underwritten offering~~ marketing of the Registrable Securities, ~~use~~ including, for example, by participating in roadshow presentations with potential investors, and such other methods as Source shall reasonably determine in its ~~commercially reasonable~~ sole discretion, and the cost of such efforts to make appropriate officers of the Company available to the Holder(s) for meetings with prospective purchasers of the Registrable Securities and prepare and present to potential investors customary "road show" material in each case in accordance with the recommendations of the underwriters and in all respects in a manner consistent with the resale of securities in an offering of a similar size to such offering of the Registrable Securities. (p) The Company shall use its commercially reasonable efforts to procure the cooperation of the Company's transfer agent in settling any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by the Holder(s) or the underwriters. (q) In the event a Holder has notified the Company that the method of distribution pursuant to the Demand Request is by means of an underwritten offering, the underwriter or underwriters shall be ~~selected~~ paid by ~~the Company and shall be approved by the Holder(s), which approval shall not be unreasonably withheld or delayed, provided, (i) that all of the representations and warranties by the Company to and~~ Stockholder unless Source is also marketing Source Securities for ~~the benefit of~~ its own account at such underwriters shall also be made to and for the benefit of the Holder(s), (ii) that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of the Holder(s), and (iii) that the Holder(s) shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements (x) that are customary for a transaction of such nature, (y) regarding the Holder(s), the Registrable Securities and the Holders' intended method of distribution, and (z) any other representations required by law. Subject to the foregoing, the Holder(s) shall enter into an underwriting agreement in customary form with the underwriter or underwriters. If the Holder(s) disapprove(s) of the terms of the underwriting, the Holder(s) may elect to withdraw all its Registrable Securities by written notice to the Company and the managing underwriter. The securities so withdrawn shall also be withdrawn from registrationtime. ~~(r) The Company shall not hereafter enter into any agreement with respect to its securities, which conflicts with the rights granted to the Holders in this Agreement.~~

Appears in 1 contract

Samples: Stockholder's Agreement (Oa3, LLC)

Registration Procedures, Rights and Obligations. The procedures to be followed by ~~the Company~~ Avanex, Alcatel and ~~the Holders~~Corning, and the respective rights and obligations of ~~the Company~~ Avanex, Alcatel and ~~the Holders~~Corning, with respect to the preparation, filing and effectiveness of the Initial Registration Statement and any Demand Registration ~~Statement~~ Statements (collectively, the “Registration Statements”) and the distribution of Registrable Securities pursuant thereto, are as follows: (a) The ~~Holders~~ Stockholders shall not be entitled to make ~~one~~ any Demand Request ~~hereunder which shall result in actual registration~~ until the expiration of the ~~Registrable Securities~~Fourth Quarter, and shall not be entitled to make more than one (1) Demand Request each; provided, however, that no such Demand Request may be made (i) prior to the date which is eleven (11) months from the date hereof, or (ii) that requests to register less than fifty percent (50%) of the Registrable Securities (as adjusted for any ~~stock splits, stock dividend, stock combination or other reclassification). (b) In the event of a~~ Demand Request that: (iA) does not result in the corresponding Demand Registration Statement being declared effective by the SEC; (~~ii) does not result in the corresponding Demand Registration Statement remaining effective for the applicable period set forth in Section 4.2(c); (iii~~B) is withdrawn by the ~~Holder(s)~~ Demanding Stockholder following the imposition of ~~a stop order, injunction or other~~ an order ~~or requirement of~~ by the SEC with respect to the corresponding Demand Registration Statement; or (ivC) is withdrawn by the ~~Holder(s)~~ Demanding Stockholder as a result of the exercise by ~~the Company~~ Avanex of its suspension rights pursuant to Sections ~~4.2(e~~4.3(f) or (fg), or (D) ~~hereof;~~ is withdrawn by the Demanding Stockholder as a result of a Demand ~~Request~~ Market Cut-Back (as hereinafter defined), shall not ~~be counted against the one (1)~~ count as a Demand ~~Request to which the Holders are entitled~~Request. Any Demand Request that is withdrawn by the ~~Holder(s)~~ Demanding Stockholder for any reason other than as set forth in the previous sentence shall count ~~for purposes of determining the~~ as a Demand ~~Request to which such Holder(s) is entitled~~Request. (cb) ~~The Company~~ Avanex shall use ~~its~~ commercially reasonable efforts to ~~cause~~ keep the ~~Demand~~ Registration ~~Statement to be declared effective promptly and to keep such Demand Registration Statement~~ Statements continuously effective until the earlier to occur of: (i) the sale or other disposition of the Registrable Securities so registered; (ii) twelve (12) months after the effective date of such Demand Registration Statement; and (iii) the termination of the Stockholders’ registration rights ~~of the Holders~~ pursuant to Section ~~4.7 hereof~~4.10 or until such time as all Registrable Securities registered pursuant to such Registration Statement have been sold. ~~The Company~~ Avanex shall prepare and file with the SEC such amendments and supplements to ~~the Demand~~ each Registration Statement and each prospectus used in connection therewith as may be necessary to make and to keep such ~~Demand~~ Registration Statement effective and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities proposed to be distributed pursuant ~~thereto~~ to such Registration Statement until the earlier to occur of: (i) the sale or other disposition of the Registrable Securities so registered; (ii) twelve (12) months after the effective date of such Demand Registration Statement; and (iii) the termination of the ~~Holders'~~ Stockholders’ registration rights pursuant to Section ~~4.7 hereof. The Company shall,~~ 4.10. (c) If Alcatel proposes to effect the ~~extent practicable, at least~~ Disposition of more than seven (7) million Registrable Securities or if Corning proposes to effect the Disposition of more than five (5) ~~Business Days prior~~ million Registrable Securities, in each case in any ninety (90) day period, then such Stockholder and Avanex shall discuss, and agree to, reasonable measures to ~~filing any registration statement or prospectus~~ enable such Disposition to be made in an orderly manner and to minimize the effect of such Disposition on the public market for Avanex Common Stock, which measures shall include block trades, privately negotiated transactions and underwritten offerings, or any ~~amendments or supplements thereto~~combination thereof; provided, ~~furnish~~ that in the event that such Stockholder and Avanex do not agree to such measures within a reasonable period, such Stockholder and Avanex shall refer the ~~Holder(s) and its counsel copies of all~~ matter to a Financial Arbitrator. The Financial Arbitrator shall be instructed to select the most appropriate measures available to enable such ~~documents proposed~~ Disposition to be ~~filed~~ made in an orderly manner and to minimize the ~~Holder(s~~effect of such Disposition on the public market for Avanex Common Stock. Following the determination of such measures, the Disposition shall only be made in accordance with the manner(s) ~~shall have the opportunity to comment on any information pertaining solely to it and its plan~~ of ~~distribution that is contained therein and the Company shall make the corrections reasonably requested~~ sale selected by the ~~Holder(s) with respect to such information prior to filing the Demand Registration Statement or amendment or supplement thereto~~Financial Arbitrator. (d) ~~The Holder(s) shall not be entitled to offer or sell~~ In connection with any ~~securities~~ underwritten offering pursuant to a Demand Registration ~~Statement unless~~ Statement, the Demanding Stockholder shall select, and ~~until~~ Avanex shall approve, which approval shall not be unreasonably withheld, one investment banking firm to serve as manager of such offering. The manager is hereinafter referred to as the ~~Company has made all required filings~~ “Demand Managing Underwriter.” Avanex shall, together with the ~~SEC~~ Demanding Stockholder, enter into an underwriting agreement with the Demand Managing Underwriter, which agreement may contain representations, warranties, indemnities and agreements then customarily included by an issuer in underwriting agreements with respect to secondary distributions under demand registration statements and may stipulate that the Demand Managing Underwriter will receive commissions and fees and other remuneration in connection with the distribution of ~~the~~ any Demand Registrable Securities~~, such filings have become effective, and the Company has notified the Holder(s) of the foregoing and that no Suspension Condition then exists~~. (e) Notwithstanding any other provision of this Agreement, the number of Demand Registrable Securities proposed to be distributed by a Stockholder pursuant to any underwritten offering may be limited by and at the discretion of the Demand Managing Underwriter if, in the discretion of the Demand Managing Underwriter, marketing factors required a limitation of the number of shares to be underwritten (a “Demand Market Cut-Back”). The securities that are entitled to be included in the underwritten offering shall be allocated to the Stockholders and other holders of Avanex Securities requesting to include such Avanex Securities in such registration statement based on the pro rata percentage of Avanex Securities held by such holders. (f) Notwithstanding any other provisions of this Agreement, in the event that ~~the Company~~ Avanex receives ~~the~~ a Demand ~~Request,~~ Request at a time when ~~the Company~~ Avanex (i) shall have filed, or has a bona fide intention to file, a registration statement with respect to a proposed public offering of equity or equity-linked ~~securities~~ securities, or (ii) has commenced, or has a bona fide intention to commence, a public offering of equity or equity-linked securities pursuant to an existing effective shelf or other registration statement, then ~~the Company~~ Avanex shall be entitled to ~~defer~~ suspend, for a period of up to ninety (90) days after the receipt by Avanex of such Demand Request, the filing of any Demand Registration ~~Statement in accordance with Section 4.2(g) hereof~~Statement. (fg) Notwithstanding any other provision of this Agreement, in the event that ~~the Company's Board of Directors~~ Avanex determines that: (~~x) (~~i) ~~non-~~ non-public material information regarding ~~the Company~~ Avanex exists, the immediate disclosure of which would be ~~significantly disadvantageous~~ detrimental to ~~the Company~~Avanex; (ii) the prospectus constituting a part of any ~~Demand~~ Registration Statement covering the distribution of any Registrable Securities contains 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, in the light of the circumstances under which they were made, not misleading; or (iii) an offering of Registrable Securities would materially ~~and adversely affect or~~ interfere with any proposed material acquisition, disposition or other similar corporate transaction or event involving ~~the Company~~ Avanex (each of the events or conditions referred to in clauses (i), (ii) and (iii) of this sentence is hereinafter referred to as a "“Suspension Condition") and (y) the Company furnishes to the Holder(s) a certificate signed by the Chief Executive Officer or the Chief Financial Officer of the Company stating that the Company's Board of Directors has determined that a Suspension Condition exists and providing an approximation of the anticipated delay (and Holder(s) acknowledge(s) that any such information shall be deemed to be Confidential Information of the Company”), then ~~the Company~~ Avanex shall have the right to ~~suspend~~ suspend, for a maximum period of 30 days (the “Suspension Period”), (A) the filing or effectiveness of ~~the Demand~~ any Registration Statement or ~~to suspend~~ (B) any distribution of Registrable Securities pursuant ~~thereto for so long as such Suspension Condition exists~~to any effective Registration Statement. ~~The Company~~ Avanex will as promptly as practicable provide written notice to ~~the Holder(s)~~ a Stockholder when a Suspension Condition arises and when it ceases to exist. Upon receipt of notice from ~~the Company~~ Avanex of the existence of any Suspension Condition, ~~the Holder(s)~~ such Stockholder shall forthwith discontinue efforts during the Suspension Period to: (i) cause Avanex to file or cause ~~the Demand~~ any Registration Statement to be declared effective by the SEC (in the event that such ~~Demand~~ Registration Statement has not been filed, or has been filed but not declared effective, at the time ~~the Holder(s) receive(s)~~ such Stockholder receives notice that a Suspension Condition has arisen); or (ii) offer or sell Registrable Securities (in the event that such ~~Demand~~ Registration Statement has been declared effective at the time ~~the Holder(s) receive(s)~~ such Stockholder receives notice that a Suspension Condition has arisen). In the event that ~~the Holder(s)~~ a Stockholder had previously commenced or was about to commence the distribution of Registrable Securities pursuant to a prospectus under an effective ~~Demand~~ Registration ~~Statement~~ Statement, then ~~the Company~~ Avanex shall, as promptly as practicable after the Suspension Condition ceases to exist, make available to ~~the Holder(s~~such Stockholder (and to each underwriter, if any, participating in such distribution) an amendment or supplement to such prospectus. If so directed by ~~the Company~~Avanex, ~~the Holder(s)~~ such Stockholder shall deliver to ~~the Company~~ Avanex all copies, other than permanent file copies then in ~~the Holders'~~ such Stockholder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. (gh) Notwithstanding any other provision of this Agreement, ~~the Company~~ Avanex shall not be permitted to postpone ~~(i)~~ the filing or effectiveness of ~~the Demand~~ any Registration Statement or ~~(ii)~~ the distribution of ~~the~~ any Registrable Securities pursuant to ~~the~~ an effective ~~Demand~~ Registration Statement pursuant to Sections ~~4.2(e~~4.2(f), 4.3(g) or 4.8(a): (fi) ~~hereof~~more than two (2) times in any 365 day period, or (ii) (A) with respect to Section 4.2(f), for an aggregate ~~period~~ of more than ~~sixty~~ 180 days or (60B) with respect to Section 4.3(g), for an aggregate of more than 120 days (in either case, excluding any market standoff periods applicable pursuant to Section 4.8) in any ~~three hundred and sixty-five day (365)~~ 365 day period~~; provided, however, that no single such postponement period shall last for more than thirty (30) consecutive days~~. (hi) ~~The Company~~ Avanex shall promptly notify ~~the Holder(s)~~ a Stockholder of any stop ~~order, injunction or other~~ order ~~or requirement of the SEC~~ issued or, to ~~the Company's~~ Avanex’s knowledge, threatened to be issued by the SEC with respect to any ~~Demand~~ Registration ~~Statement~~ Statement, and will use its commercially reasonable efforts to prevent the entry of such stop ~~order, injunction or other~~ order ~~or requirement of the SEC~~ or to remove it if entered at the earliest possible date. (ij) ~~The Company~~ Avanex shall furnish to ~~the Holder(s~~a Stockholder (and any underwriter in connection with any underwritten offering) such number of copies of any ~~prospectus,~~ prospectus (including any preliminary prospectus and any amended or supplemented ~~prospectus (including in each case all exhibits, but subject to any applicable confidential treatment thereof~~prospectus), in conformity with the requirements of the Securities Act, as ~~the Holder(s~~such Stockholder (and such underwriters) shall reasonably request in order to effect the offering and sale of any Registrable Securities to be offered and sold~~. The Company~~ , but only while Avanex shall ~~use its commercially reasonable efforts~~ be required under the provisions hereof to ~~provide to~~ cause the ~~Holder(s) or any underwriter participating in any disposition~~ Registration Statement pursuant to ~~the Demand Registration Statement (and any attorney, accountant or other agent retained by~~ which such Representative or any such underwriter for the purpose of effecting the Demand Registration Statement) relevant financial and other corporate records of the Company reasonably necessary for the Holder(s) to effect the registration of the Registrable Securities ~~pursuant~~ are intended to ~~the Demand Registration Statement~~be distributed to remain current. (jk) ~~The Company~~ Avanex shall use ~~its~~ commercially reasonable efforts to register or qualify the Registrable Securities covered by ~~the Demand~~ each Registration Statement under the state securities or "“blue sky" ” laws of such ~~jurisdictions~~ states as ~~the Holder(s)~~ a Stockholder shall reasonably request, to and maintain any such registration or qualification ~~in effect for so long as such Demand Registration Statement remains in effect~~current, ~~and to take any other action which may be reasonably necessary to enable the Holder(s) to consummate the disposition in such jurisdiction of the Registrable Securities owned by the Holder(s)~~ until the earlier to occur of: (i) the sale or other disposition of the Registrable Securities so registered; (ii) twelve (12) months after the effective date of such Demand Registration Statement; and (iii) the termination of the Stockholders’ registration rights ~~of the Holder(s)~~ pursuant to Section ~~4.7 hereof~~4.10; provided, however, that ~~the Company~~ Avanex shall not be required to take any action that would subject it to the general jurisdiction of the courts of any jurisdiction in which it is not so subject or to qualify as a foreign corporation in any jurisdiction where ~~the Company~~ Avanex is not so qualified. (kl) ~~The Company~~ Avanex shall ~~use its commercially reasonable efforts~~ furnish to ~~furnish, at the Holders' request, if the method of distribution is by means of~~ a Stockholder and to each underwriter engaged in an underwritten ~~offering, on the date that the shares~~ offering of Registrable ~~Securities are delivered to the underwriters for sale pursuant~~ Securities, a signed counterpart, addressed to such ~~registration~~Stockholder or such underwriter, of (i) an opinion or ~~if such Registrable Securities are not being sold through underwriters, on the date that the Demand Registration Statement~~ opinions of counsel to Avanex (with respect to ~~such shares of Registrable Securities becomes effective,~~ Avanex and securities law compliance by Avanex) and (1ii) a ~~signed opinion (~~comfort letter or comfort letters from Avanex’s independent public accountants, each in customary form for a transaction of such nature and size), dated such date, of the independent legal counsel representing the Company, addressed to the underwriters, if any, and if such Registrable Securities are not being sold through underwriters, then to the Holder(s); and (2) letters dated such date and the date the offering is priced, from the independent certified public accountants of the Company, addressed to the underwriters, if any, and if such Registrable Securities are not being sold through underwriters, then to the Holder(s) and, if such accountants refuse to deliver such letters to such Holder(s), then to the Company stating that they are independent certified public accountants within the meaning of the Securities Act and covering such ~~financial~~ matters of the type customarily covered by opinions or comfort letters, as ~~would be customary in~~ the case may be, as such ~~a transaction. (l) The Company shall use its commercially reasonable efforts to enter into customary agreements (including if~~ Stockholder or the ~~method of distribution is by means of an underwritten offering, an underwriting agreement in customary form) and take such other actions as are~~ managing underwriters may reasonably ~~required in order to expedite or facilitate the disposition of such Registrable Securities as contemplated herein~~request. (m) ~~The Company~~ Avanex shall use ~~its~~ commercially reasonable efforts to cause ~~the~~ all Registrable Securities ~~covered by the Demand Registration Statement~~ to be listed on each securities exchange ~~or quotation system~~ on which similar securities ~~issued by the Company~~ of Avanex are ~~listed or traded~~then listed. (n) ~~The Company~~ Avanex shall ~~use its commercially reasonable efforts~~ take all such other actions reasonably necessary to ~~prevent~~ permit the ~~issuance or obtain~~ Registrable Securities held by the ~~withdrawal~~ Stockholders to be registered and disposed of ~~any order suspending~~ in accordance with the ~~effectiveness~~ methods of ~~such Demand Registration Statement~~disposition described herein. (o) ~~The Company shall~~Upon request from a Stockholder, Avanex shall use commercially reasonable efforts to assist in ~~connection with any underwritten offering~~ the marketing of the Registrable Securities, ~~use~~ including, for example, by participating in roadshow presentations with potential investors, and such other methods as Avanex shall reasonably determine in its ~~commercially reasonable~~ sole discretion, and the cost of such efforts ~~to make appropriate officers of~~ shall be paid by the ~~Company available to the Holder(s) for meetings with prospective purchasers of the~~ Stockholder requesting such assistance unless Avanex is also marketing Registrable Securities and prepare and present to potential investors customary "road show" material in each case in accordance with the recommendations of the underwriters and in all respects in a manner consistent with the resale of securities in an offering of a similar size to for its own account at such ~~offering of the Registrable Securities~~time. (p) The Company shall use its commercially reasonable efforts to procure the cooperation of the Company's transfer agent in settling any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by the Holder(s) or the underwriters. (q) In the event a Holder has notified the Company that the method of distribution pursuant to the Demand Request is by means of an underwritten offering, the underwriter or underwriters shall be selected by the Company and shall be approved by the Holder(s), which approval shall not be unreasonably withheld or delayed, provided, (i) that all of the representations and warranties by the Company to and for the benefit of such underwriters shall also be made to and for the benefit of the Holder(s), (ii) that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of the Holder(s), and (iii) that the Holder(s) shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements (x) that are customary for a transaction of such nature, (y) regarding the Holder(s), the Registrable Securities and the Holders' intended method of distribution, and (z) any other representations required by law. Subject to the foregoing, the Holder(s) shall enter into an underwriting agreement in customary form with the underwriter or underwriters. If the Holder(s) disapprove(s) of the terms of the underwriting, the Holder(s) may elect to withdraw all its Registrable Securities by written notice to the Company and the managing underwriter. The securities so withdrawn shall also be withdrawn from registration. (r) The Company shall not hereafter enter into any agreement with respect to its securities, which conflicts with the rights granted to the Holders in this Agreement.

Appears in 1 contract

Samples: Stockholders' Agreement (Alcatel)

Registration Procedures, Rights and Obligations. The procedures to be followed by the Company and the ~~Holders~~Holder, and the respective rights and obligations of the Company and the ~~Holders~~Holder, with respect to the preparation, filing and effectiveness of the Demand Registration Statement and the distribution of Registrable Securities pursuant thereto, are as follows: (a) The ~~Holders~~ Holders, collectively, shall be entitled to make ~~one~~ a maximum of two (2) Demand ~~Request hereunder which shall~~ Requests that result in the actual registration of ~~the~~ Registrable Securities; provided, however, that no such Demand Request may be made (i) prior to the date which is eleven (11) months from the date hereof, or (ii) that requests to register less than fifty percent (50%) of the Registrable Securities (as adjusted for any stock splits, stock dividend, stock combination or other reclassification). (b) ~~In the event of a~~ Any Demand Request ~~that: (i)~~ that does not result in the corresponding Demand Registration Statement being declared effective by the SEC; (ii) does not result in the corresponding Demand Registration Statement remaining effective for the applicable period set forth in Section 4.2(c); (iii) is withdrawn by the Holder(s) following the imposition of a stop order, injunction or other order or requirement of the SEC with respect to the corresponding Demand Registration Statement; or (iv) is withdrawn by the Holder(s) as a result of the exercise by the Company of its suspension rights pursuant to Sections 4.2(e) or (f) hereof; the Demand Request shall not be counted against the ~~one~~ maximum of two (12) Demand ~~Request~~ Requests to which the Holders are entitled. Any Demand Request that is withdrawn by the ~~Holder(s)~~ Holders for any reason (other than as ~~set forth in~~ a result of a materially adverse development on the ~~previous sentence~~ part of the Company) shall count for purposes of determining the Demand Request to which ~~such Holder(s) is~~ the Holders are entitled. (c) The Company shall use its ~~commercially~~ reasonable best efforts to cause the Demand Registration Statement to be declared effective by the SEC promptly and to keep such Demand Registration Statement continuously effective until the ~~earlier~~ earliest to occur of: (i) the sale or other disposition of all the Registrable Securities so registered; and (ii) ~~twelve (12) months after~~ the ~~effective~~ date of which is 180 days from the date on which such Demand Registration ~~Statement; and~~ Statement was declared effective by the SEC (~~iii)~~ the ~~termination of the registration rights of the Holders pursuant to Section 4.7 hereof~~“Effectiveness Period”). The Company shall prepare and file with the SEC such amendments and supplements to the Demand Registration Statement and prospectus used in connection therewith as may be necessary to make and to keep such Demand Registration Statement effective and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities proposed to be distributed pursuant thereto ~~until~~ during the earlier to occur of: (i) the sale or other disposition of the Registrable Securities so registered; (ii) twelve (12) months after the effective date of such Demand Registration Statement; and (iii) the termination of the Holders' registration rights pursuant to Section 4.7 hereofEffectiveness Period. The Company shall, to the extent reasonably practicable, at least ~~five~~ three (53) Business Days prior to filing any ~~registration statement~~ Demand Registration Statement or prospectus or any amendments or supplements thereto, furnish to the ~~Holder(s)~~ Notice Holders and its counsel copies of all such documents proposed to be filed and the ~~Holder(s)~~ Notice Holders shall have the opportunity to comment on any information pertaining solely to it and its plan of distribution that is contained therein and the Company shall make the corrections reasonably requested by the ~~Holder(s)~~ Notice Holders with respect to such information prior to filing ~~the~~ any such Demand Registration Statement or ~~amendment or supplement thereto~~amendment. (d) The ~~Holder(s)~~ Notice Holders named as selling securityholders in any Demand Registration Statement shall not be entitled to offer or sell any securities pursuant to a such Demand Registration Statement unless and until the Company has made all required filings with the SEC with respect to the distribution of the Registrable Securities, such filings have become effective, and the Company has notified the ~~Holder(s)~~ Notice Holders so named of the foregoing and that no Suspension Condition then exists. The Company agrees to make all of such required filings, if any, and to use its reasonable best efforts to cause them to so become effective. (e) Notwithstanding any other ~~provision~~ provisions of this ~~Agreement~~Exhibit C, in the event that the Company receives the Demand Request, at a time when the Company (i) ~~shall have filed, or has a bona fide intention to file, a registration statement with respect to a proposed public offering of equity or equity-linked securities or (ii)~~ has commenced, or has a bona fide intention to commence, a public securities offering ~~of equity~~ transaction, or ~~equity~~(ii) non-linked securities pursuant to an existing effective shelf or other registration statement, then the Company shall be entitled to defer the filing of any Demand Registration Statement in accordance with Section 4.2(g) hereof. (f) Notwithstanding any other provision of this Agreement, in the event that the Company's Board of Directors determines that: (x) (i) non- public material information not otherwise then required by law to be publicly disclosed regarding the Company exists, the immediate disclosure of which would be significantly disadvantageous to the Company; , then the Company shall be entitled to suspend, for an aggregate period of up to thirty (30) days after the receipt by the Company of such Demand Request, the filing of any Demand Registration Statement (each of the events or conditions referred to in clauses (i) and (ii) of this sentence is hereinafter referred to as a “Blackout Event”). (f) Notwithstanding any other provision of this Exhibit C, in the event that the Company’s board of directors determines that: (i) the prospectus constituting a part of any Demand Registration Statement covering the distribution of any Registrable Securities contains 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, in the light of the circumstances under which they were made, not misleading; or (~~iii~~ii) an offering of Registrable Securities would materially and adversely affect or interfere with any proposed material acquisition, disposition or other similar corporate transaction or event involving the Company (each of the events or conditions referred to in clauses (i~~), (ii~~) and (~~iii~~ii) of this sentence is hereinafter referred to as a "“Suspension Condition") and (y) the Company furnishes to the Holder(s) a certificate signed by the Chief Executive Officer or the Chief Financial Officer of the Company stating that the Company's Board of Directors has determined that a Suspension Condition exists and providing an approximation of the anticipated delay (and Holder(s) acknowledge(s) that any such information shall be deemed to be Confidential Information of the Company”), then the Company shall have the right to suspend the filing or effectiveness of ~~the~~ any Demand Registration Statement required pursuant to Section 2.1, or to suspend any distribution of Registrable Securities pursuant thereto for ~~so long~~ an aggregate period of up to forty-five (45) days (such period hereinafter referred to as ~~such~~ a “Suspension ~~Condition exists. The~~ Period”) after the delivery of notice from the Company ~~will as promptly as practicable provide written notice~~ to the ~~Holder(s) when~~ Holders of the existence of any Suspension Condition; provided that the 180-day period during which a Demand Registration Statement is required to be declared effective in accordance with the terms of this Exhibit C shall be extended by the duration of any Suspension ~~Condition arises~~ Period and ~~when it ceases~~ any additional period during which the amendment or supplement to ~~exist~~the prospectus relating to such Demand Registration Statement referred to below has not been delivered. Upon receipt of notice from the Company of the existence of any Suspension Condition, the ~~Holder(s)~~ Holders shall forthwith discontinue ~~efforts to: (i) file or cause the Demand Registration Statement~~ to be declared effective by the SEC (in the event that such Demand Registration Statement has not been filed, or has been filed but not declared effective, at the time the Holder(s) receive(s) notice that a Suspension Condition has arisen); or (ii) offer or sell Registrable Securities (in the event that such Demand Registration Statement has been declared effective at the time the ~~Holder(s) receive(s)~~ Notice Holders receive notice that a Suspension Condition has arisen). In the event that the ~~Holder(s)~~ Notice Holders had previously commenced or ~~was~~ were about to commence the distribution of Registrable Securities pursuant to a prospectus under an effective Demand Registration Statement then the Company shall, as promptly ~~as practicable~~ after the Suspension Condition ceases to exist, make available to the ~~Holder(s)~~ Notice Holders an amendment or supplement to such prospectus. If so directed by the Company, the ~~Holder(s)~~ Notice Holders shall deliver to the Company all copies, other than permanent file copies then in the Notice Holders' ’ possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. (g) Notwithstanding any other provision of this Agreement, the Company shall not be permitted to postpone (i) the filing or effectiveness of the Demand Registration Statement or (ii) the distribution of the Registrable Securities pursuant to the effective Demand Registration Statement pursuant to Sections 4.2(e) or (f) hereof, for an aggregate period of more than sixty (60) days in any three hundred and sixty-five day (365) day period; provided, however, that no single such postponement period shall last for more than thirty (30) consecutive days. (h) The Company shall promptly notify the ~~Holder(s)~~ Notice Holders of any stop order, injunction or other order or requirement of the SEC issued or, to the Company's ’s knowledge, threatened to be issued by the SEC with respect to any Demand Registration Statement in which such Notice Holders are named as selling securityholders and will use its ~~commercially~~ reasonable best efforts to prevent the entry of such stop order, injunction or other order or requirement of the SEC or to remove it if entered at the earliest possible date. (ih) The Company shall furnish to the ~~Holder(s)~~ Notice Holders such number of copies of any prospectus, including any preliminary prospectus and any amended or supplemented prospectus (including in each case all exhibits~~, but subject to any applicable confidential treatment thereof~~), in conformity with the requirements of the Securities Act, in which such Notice Holders are named as ~~the Holder(s)~~ selling securityholders, as such Notice Holders shall reasonably request in order to effect the offering and sale of any Registrable Securities to be offered and sold. The Company shall use its commercially reasonable efforts to provide to the Holder(s) or any underwriter participating in any disposition pursuant to the Demand Registration Statement (and any attorney, accountant or other agent retained by such Representative or any such underwriter for the purpose of effecting the Demand Registration Statement) relevant financial and other corporate records of the Company reasonably necessary for the Holder(s) to effect the registration of the Registrable Securities pursuant to the Demand Registration Statement. (ji) The Company shall use its ~~commercially~~ reasonable best efforts to register or qualify the Registrable Securities covered by the ~~Demand~~ Registration Statement under the state securities or "“blue sky" ” laws of such jurisdictions as the ~~Holder(s)~~ Notice Holder shall reasonably request, to ~~maintain any~~ keep such registration or qualification in effect for so long as such ~~Demand~~ Registration Statement remains in effect, and to take any other action which may be reasonably necessary to enable the ~~Holder(s)~~ Notice Holder to consummate the disposition in such jurisdiction of the Registrable Securities owned by the ~~Holder(s)~~ Notice Holder until the earlier to occur of: (i) the sale or other disposition of the Registrable Securities so registered; and (ii) ~~twelve (12) months after~~ in the ~~effective date~~ case of ~~such~~ a Demand Registration Statement~~; and (iii)~~ , until the ~~termination of~~ date which is 180 days from the ~~registration rights of~~ date on which such Registration Statement was declared effective by the ~~Holder(s) pursuant to Section 4.7 hereof~~SEC; provided, however, that the Company shall not be required to take any action that would subject it to the general jurisdiction of the courts of any jurisdiction in which it is not so subject or to qualify as a foreign corporation in any jurisdiction where the Company is not so qualified. (kj) The Company shall use its ~~commercially~~ reasonable efforts to furnish, at the Holders' request, if the method of distribution is by means of an underwritten offering, on the date that the shares of Registrable Securities are delivered to the underwriters for sale pursuant to such registration, or if such Registrable Securities are not being sold through underwriters, on the date that the Demand Registration Statement with respect to such shares of Registrable Securities becomes effective, (1) a signed opinion (in customary form for a transaction of such nature and size), dated such date, of the independent legal counsel representing the Company, addressed to the underwriters, if any, and if such Registrable Securities are not being sold through underwriters, then to the Holder(s); and (2) letters dated such date and the date the offering is priced, from the independent certified public accountants of the Company, addressed to the underwriters, if any, and if such Registrable Securities are not being sold through underwriters, then to the Holder(s) and, if such accountants refuse to deliver such letters to such Holder(s), then to the Company stating that they are independent certified public accountants within the meaning of the Securities Act and covering such financial matters as would be customary in such a transaction. (l) The Company shall use its commercially reasonable efforts to enter into customary agreements (including if the method of distribution is by means of an underwritten offering, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities as contemplated herein. (m) The Company shall use its commercially reasonable efforts to cause the Registrable Securities covered by the Demand Registration Statement to be listed on each securities exchange or quotation system on which similar securities issued by the Company are listed or traded. (n) The Company shall use its commercially reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of ~~such~~ any Demand Registration ~~Statement~~Statement at the earliest possible time. (o) The Company shall, in connection with any underwritten offering of the Registrable Securities, use its commercially reasonable efforts to make appropriate officers of the Company available to the Holder(s) for meetings with prospective purchasers of the Registrable Securities and prepare and present to potential investors customary "road show" material in each case in accordance with the recommendations of the underwriters and in all respects in a manner consistent with the resale of securities in an offering of a similar size to such offering of the Registrable Securities. (p) The Company shall use its commercially reasonable efforts to procure the cooperation of the Company's transfer agent in settling any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by the Holder(s) or the underwriters. (q) In the event a Holder has notified the Company that the method of distribution pursuant to the Demand Request is by means of an underwritten offering, the underwriter or underwriters shall be selected by the Company and shall be approved by the Holder(s), which approval shall not be unreasonably withheld or delayed, provided, (i) that all of the representations and warranties by the Company to and for the benefit of such underwriters shall also be made to and for the benefit of the Holder(s), (ii) that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of the Holder(s), and (iii) that the Holder(s) shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements (x) that are customary for a transaction of such nature, (y) regarding the Holder(s), the Registrable Securities and the Holders' intended method of distribution, and (z) any other representations required by law. Subject to the foregoing, the Holder(s) shall enter into an underwriting agreement in customary form with the underwriter or underwriters. If the Holder(s) disapprove(s) of the terms of the underwriting, the Holder(s) may elect to withdraw all its Registrable Securities by written notice to the Company and the managing underwriter. The securities so withdrawn shall also be withdrawn from registration. (r) The Company shall not hereafter enter into any agreement with respect to its securities, which conflicts with the rights granted to the Holders in this Agreement.

Appears in 1 contract

Samples: Convertible Redeemable Exchangeable Preferred Stock Purchase Agreement (Webmd Corp /New/)

Registration Procedures, Rights and Obligations. The procedures to be followed by ~~the Company~~ Avanex, Alcatel and ~~the Holders~~Corning, and the respective rights and obligations of ~~the Company~~ Avanex, Alcatel and ~~the Holders~~Corning, with respect to the preparation, filing and effectiveness of the Initial Registration Statement and any Demand Registration ~~Statement~~ Statements (collectively, the "REGISTRATION STATEMENTS") and the distribution of Registrable Securities pursuant thereto, are as follows: (a) The ~~Holders~~ Stockholders shall not be entitled to make ~~one~~ any Demand Request ~~hereunder which shall result in actual registration~~ until the expiration of the ~~Registrable Securities~~Fourth Quarter, and shall not be entitled to make more than one (1) Demand Request each; provided, however, that no such Demand Request may be made (i) prior to the date which is eleven (11) months from the date hereof, or (ii) that requests to register less than fifty percent (50%) of the Registrable Securities (as adjusted for any ~~stock splits, stock dividend, stock combination or other reclassification). (b) In the event of a~~ Demand Request that: (iA) does not result in the corresponding Demand Registration Statement being declared effective by the SEC; (~~ii) does not result in the corresponding Demand Registration Statement remaining effective for the applicable period set forth in Section 4.2(c); (iii~~B) is withdrawn by the ~~Holder(s)~~ Demanding Stockholder following the imposition of ~~a stop order, injunction or other~~ an order ~~or requirement of~~ by the SEC with respect to the corresponding Demand Registration Statement; or (ivC) is withdrawn by the ~~Holder(s)~~ Demanding Stockholder as a result of the exercise by ~~the Company~~ Avanex of its suspension rights pursuant to Sections ~~4.2(e~~4.3(f) or (fg), or (D) ~~hereof;~~ is withdrawn by the Demanding Stockholder as a result of a Demand ~~Request~~ Market Cut-Back (as hereinafter defined), shall not ~~be counted against the one (1)~~ count as a Demand ~~Request to which the Holders are entitled~~Request. Any Demand Request that is withdrawn by the ~~Holder(s)~~ Demanding Stockholder for any reason other than as set forth in the previous sentence shall count ~~for purposes of determining the~~ as a Demand ~~Request to which such Holder(s) is entitled~~Request. (cb) ~~The Company~~ Avanex shall use ~~its~~ commercially reasonable efforts to ~~cause~~ keep the ~~Demand~~ Registration ~~Statement to be declared effective promptly and to keep such Demand Registration Statement~~ Statements continuously effective until the earlier to occur of: (i) the sale or other disposition of the Registrable Securities so registered; (ii) twelve (12) months after the effective date of such Demand Registration Statement; and (iii) the termination of the Stockholders' registration rights ~~of the Holders~~ pursuant to Section ~~4.7 hereof~~4.10 or until such time as all Registrable Securities registered pursuant to such Registration Statement have been sold. ~~The Company~~ Avanex shall prepare and file with the SEC such amendments and supplements to ~~the Demand~~ each Registration Statement and each prospectus used in connection therewith as may be necessary to make and to keep such ~~Demand~~ Registration Statement effective and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities proposed to be distributed pursuant ~~thereto~~ to such Registration Statement until the earlier to occur of: (i) the sale or other disposition of the Registrable Securities so registered; (ii) twelve (12) months after the effective date of such Demand Registration Statement; and (iii) the termination of the ~~Holders~~Stockholders' registration rights pursuant to Section ~~4.7 hereof. The Company shall,~~ 4.10. (c) If Alcatel proposes to effect the ~~extent practicable, at least~~ Disposition of more than seven (7) million Registrable Securities or if Corning proposes to effect the Disposition of more than five (5) ~~Business Days prior~~ million Registrable Securities, in each case in any ninety (90) day period, then such Stockholder and Avanex shall discuss, and agree to, reasonable measures to ~~filing any registration statement or prospectus~~ enable such Disposition to be made in an orderly manner and to minimize the effect of such Disposition on the public market for Avanex Common Stock, which measures shall include block trades, privately negotiated transactions and underwritten offerings, or any ~~amendments or supplements thereto~~combination thereof; provided, ~~furnish~~ that in the event that such Stockholder and Avanex do not agree to such measures within a reasonable period, such Stockholder and Avanex shall refer the ~~Holder(s) and its counsel copies of all~~ matter to a Financial Arbitrator. The Financial Arbitrator shall be instructed to select the most appropriate measures available to enable such ~~documents proposed~~ Disposition to be ~~filed~~ made in an orderly manner and to minimize the ~~Holder(s~~effect of such Disposition on the public market for Avanex Common Stock. Following the determination of such measures, the Disposition shall only be made in accordance with the manner(s) ~~shall have the opportunity to comment on any information pertaining solely to it and its plan~~ of ~~distribution that is contained therein and the Company shall make the corrections reasonably requested~~ sale selected by the ~~Holder(s) with respect to such information prior to filing the Demand Registration Statement or amendment or supplement thereto~~Financial Arbitrator. (d) ~~The Holder(s) shall not be entitled to offer or sell~~ In connection with any ~~securities~~ underwritten offering pursuant to a Demand Registration ~~Statement unless~~ Statement, the Demanding Stockholder shall select, and ~~until~~ Avanex shall approve, which approval shall not be unreasonably withheld, one investment banking firm to serve as manager of such offering. The manager is hereinafter referred to as the ~~Company has made all required filings~~ "DEMAND MANAGING UNDERWRITER." Avanex shall, together with the ~~SEC~~ Demanding Stockholder, enter into an underwriting agreement with the Demand Managing Underwriter, which agreement may contain representations, warranties, indemnities and agreements then customarily included by an issuer in underwriting agreements with respect to secondary distributions under demand registration statements and may stipulate that the Demand Managing Underwriter will receive commissions and fees and other remuneration in connection with the distribution of ~~the~~ any Demand Registrable Securities~~, such filings have become effective, and the Company has notified the Holder(s) of the foregoing and that no Suspension Condition then exists~~. (e) Notwithstanding any other provision of this Agreement, the number of Demand Registrable Securities proposed to be distributed by a Stockholder pursuant to any underwritten offering may be limited by and at the discretion of the Demand Managing Underwriter if, in the discretion of the Demand Managing Underwriter, marketing factors required a limitation of the number of shares to be underwritten (a "DEMAND MARKET CUT-BACK"). The securities that are entitled to be included in the underwritten offering shall be allocated to the Stockholders and other holders of Avanex Securities requesting to include such Avanex Securities in such registration statement based on the pro rata percentage of Avanex Securities held by such holders. (f) Notwithstanding any other provisions of this Agreement, in the event that ~~the Company~~ Avanex receives ~~the~~ a Demand ~~Request,~~ Request at a time when ~~the Company~~ Avanex (i) shall have filed, or has a bona fide intention to file, a registration statement with respect to a proposed public offering of equity or equity-linked ~~securities~~ securities, or (ii) has commenced, or has a bona fide intention to commence, a public offering of equity or equity-linked securities pursuant to an existing effective shelf or other registration statement, then ~~the Company~~ Avanex shall be entitled to ~~defer~~ suspend, for a period of up to ninety (90) days after the receipt by Avanex of such Demand Request, the filing of any Demand Registration ~~Statement in accordance with Section 4.2(g) hereof~~Statement. (fg) Notwithstanding any other provision of this Agreement, in the event that ~~the Company's Board of Directors~~ Avanex determines that: (~~x) (~~i) ~~non-~~ non-public material information regarding ~~the Company~~ Avanex exists, the immediate disclosure of which would be ~~significantly disadvantageous~~ detrimental to ~~the Company~~Avanex; (ii) the prospectus constituting a part of any ~~Demand~~ Registration Statement covering the distribution of any Registrable Securities contains 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, in the light of the circumstances under which they were made, not misleading; or (iii) an offering of Registrable Securities would materially ~~and adversely affect or~~ interfere with any proposed material acquisition, disposition or other similar corporate transaction or event involving ~~the Company~~ Avanex (each of the events or conditions referred to in clauses (i), (ii) and (iii) of this sentence is hereinafter referred to as a "~~Suspension Condition~~SUSPENSION CONDITION") and (y) the Company furnishes to the Holder(s) a certificate signed by the Chief Executive Officer or the Chief Financial Officer of the Company stating that the Company's Board of Directors has determined that a Suspension Condition exists and providing an approximation of the anticipated delay (and Holder(s) acknowledge(s) that any such information shall be deemed to be Confidential Information of the Company), then ~~the Company~~ Avanex shall have the right to ~~suspend~~ suspend, for a maximum period of 30 days (the "SUSPENSION PERIOD"), (A) the filing or effectiveness of ~~the Demand~~ any Registration Statement or ~~to suspend~~ (B) any distribution of Registrable Securities pursuant ~~thereto for so long as such Suspension Condition exists~~to any effective Registration Statement. ~~The Company~~ Avanex will as promptly as practicable provide written notice to ~~the Holder(s)~~ a Stockholder when a Suspension Condition arises and when it ceases to exist. Upon receipt of notice from ~~the Company~~ Avanex of the existence of any Suspension Condition, ~~the Holder(s)~~ such Stockholder shall forthwith discontinue efforts during the Suspension Period to: (i) cause Avanex to file or cause ~~the Demand~~ any Registration Statement to be declared effective by the SEC (in the event that such ~~Demand~~ Registration Statement has not been filed, or has been filed but not declared effective, at the time ~~the Holder(s) receive(s)~~ such Stockholder receives notice that a Suspension Condition has arisen); or (ii) offer or sell Registrable Securities (in the event that such ~~Demand~~ Registration Statement has been declared effective at the time ~~the Holder(s) receive(s)~~ such Stockholder receives notice that a Suspension Condition has arisen). In the event that ~~the Holder(s)~~ a Stockholder had previously commenced or was about to commence the distribution of Registrable Securities pursuant to a prospectus under an effective ~~Demand~~ Registration ~~Statement~~ Statement, then ~~the Company~~ Avanex shall, as promptly as practicable after the Suspension Condition ceases to exist, make available to ~~the Holder(s~~such Stockholder (and to each underwriter, if any, participating in such distribution) an amendment or supplement to such prospectus. If so directed by ~~the Company~~Avanex, ~~the Holder(s)~~ such Stockholder shall deliver to ~~the Company~~ Avanex all copies, other than permanent file copies then in ~~the Holders'~~ such Stockholder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. (gh) Notwithstanding any other provision of this Agreement, ~~the Company~~ Avanex shall not be permitted to postpone ~~(i)~~ the filing or effectiveness of ~~the Demand~~ any Registration Statement or ~~(ii)~~ the distribution of ~~the~~ any Registrable Securities pursuant to ~~the~~ an effective ~~Demand~~ Registration Statement pursuant to Sections ~~4.2(e~~4.2(f), 4.3(g) or 4.8(a): (fi) ~~hereof~~more than two (2) times in any 365 day period, or (ii) (A) with respect to Section 4.2(f), for an aggregate ~~period~~ of more than ~~sixty~~ 180 days or (60B) with respect to Section 4.3(g), for an aggregate of more than 120 days (in either case, excluding any market standoff periods applicable pursuant to Section 4.8) in any ~~three hundred and sixty-five day (365)~~ 365 day period~~; provided, however, that no single such postponement period shall last for more than thirty (30) consecutive days~~. (hi) ~~The Company~~ Avanex shall promptly notify ~~the Holder(s)~~ a Stockholder of any stop ~~order, injunction or other~~ order ~~or requirement of the SEC~~ issued or, to ~~the Company~~Avanex's knowledge, threatened to be issued by the SEC with respect to any ~~Demand~~ Registration ~~Statement~~ Statement, and will use its commercially reasonable efforts to prevent the entry of such stop ~~order, injunction or other~~ order ~~or requirement of the SEC~~ or to remove it if entered at the earliest possible date. (ij) ~~The Company~~ Avanex shall furnish to ~~the Holder(s~~a Stockholder (and any underwriter in connection with any underwritten offering) such number of copies of any ~~prospectus,~~ prospectus (including any preliminary prospectus and any amended or supplemented ~~prospectus (including in each case all exhibits, but subject to any applicable confidential treatment thereof~~prospectus), in conformity with the requirements of the Securities Act, as ~~the Holder(s~~such Stockholder (and such underwriters) shall reasonably request in order to effect the offering and sale of any Registrable Securities to be offered and sold~~. The Company~~ , but only while Avanex shall ~~use its commercially reasonable efforts~~ be required under the provisions hereof to ~~provide to~~ cause the ~~Holder(s) or any underwriter participating in any disposition~~ Registration Statement pursuant to ~~the Demand Registration Statement (and any attorney, accountant or other agent retained by~~ which such Representative or any such underwriter for the purpose of effecting the Demand Registration Statement) relevant financial and other corporate records of the Company reasonably necessary for the Holder(s) to effect the registration of the Registrable Securities ~~pursuant~~ are intended to ~~the Demand Registration Statement~~be distributed to remain current. (jk) ~~The Company~~ Avanex shall use ~~its~~ commercially reasonable efforts to register or qualify the Registrable Securities covered by ~~the Demand~~ each Registration Statement under the state securities or "blue sky" laws of such ~~jurisdictions~~ states as ~~the Holder(s)~~ a Stockholder shall reasonably request, to and maintain any such registration or qualification ~~in effect for so long as such Demand Registration Statement remains in effect~~current, ~~and to take any other action which may be reasonably necessary to enable the Holder(s) to consummate the disposition in such jurisdiction of the Registrable Securities owned by the Holder(s)~~ until the earlier to occur of: (i) the sale or other disposition of the Registrable Securities so registered; (ii) twelve (12) months after the effective date of such Demand Registration Statement; and (iii) the termination of the Stockholders' registration rights ~~of the Holder(s)~~ pursuant to Section ~~4.7 hereof~~4.10; provided, however, that ~~the Company~~ Avanex shall not be required to take any action that would subject it to the general jurisdiction of the courts of any jurisdiction in which it is not so subject or to qualify as a foreign corporation in any jurisdiction where ~~the Company~~ Avanex is not so qualified. (kl) ~~The Company~~ Avanex shall ~~use its commercially reasonable efforts~~ furnish to ~~furnish, at the Holders' request, if the method of distribution is by means of~~ a Stockholder and to each underwriter engaged in an underwritten ~~offering, on the date that the shares~~ offering of Registrable ~~Securities are delivered to the underwriters for sale pursuant~~ Securities, a signed counterpart, addressed to such ~~registration~~Stockholder or such underwriter, of (i) an opinion or ~~if such Registrable Securities are not being sold through underwriters, on the date that the Demand Registration Statement~~ opinions of counsel to Avanex (with respect to ~~such shares of Registrable Securities becomes effective,~~ Avanex and securities law compliance by Avanex) and (1ii) a ~~signed opinion (~~comfort letter or comfort letters from Avanex's independent public accountants, each in customary form for a transaction of such nature and size), dated such date, of the independent legal counsel representing the Company, addressed to the underwriters, if any, and if such Registrable Securities are not being sold through underwriters, then to the Holder(s); and (2) letters dated such date and the date the offering is priced, from the independent certified public accountants of the Company, addressed to the underwriters, if any, and if such Registrable Securities are not being sold through underwriters, then to the Holder(s) and, if such accountants refuse to deliver such letters to such Holder(s), then to the Company stating that they are independent certified public accountants within the meaning of the Securities Act and covering such ~~financial~~ matters of the type customarily covered by opinions or comfort letters, as ~~would be customary in~~ the case may be, as such ~~a transaction. (l) The Company shall use its commercially reasonable efforts to enter into customary agreements (including if~~ Stockholder or the ~~method of distribution is by means of an underwritten offering, an underwriting agreement in customary form) and take such other actions as are~~ managing underwriters may reasonably ~~required in order to expedite or facilitate the disposition of such Registrable Securities as contemplated herein~~request. (m) ~~The Company~~ Avanex shall use ~~its~~ commercially reasonable efforts to cause ~~the~~ all Registrable Securities ~~covered by the Demand Registration Statement~~ to be listed on each securities exchange ~~or quotation system~~ on which similar securities ~~issued by the Company~~ of Avanex are ~~listed or traded~~then listed. (n) ~~The Company~~ Avanex shall ~~use its commercially reasonable efforts~~ take all such other actions reasonably necessary to ~~prevent~~ permit the ~~issuance or obtain~~ Registrable Securities held by the ~~withdrawal~~ Stockholders to be registered and disposed of ~~any order suspending~~ in accordance with the ~~effectiveness~~ methods of ~~such Demand Registration Statement~~disposition described herein. (o) ~~The Company shall~~Upon request from a Stockholder, Avanex shall use commercially reasonable efforts to assist in ~~connection with any underwritten offering~~ the marketing of the Registrable Securities, ~~use~~ including, for example, by participating in roadshow presentations with potential investors, and such other methods as Avanex shall reasonably determine in its ~~commercially reasonable~~ sole discretion, and the cost of such efforts ~~to make appropriate officers of~~ shall be paid by the ~~Company available to the Holder(s) for meetings with prospective purchasers of the~~ Stockholder requesting such assistance unless Avanex is also marketing Registrable Securities and prepare and present to potential investors customary "road show" material in each case in accordance with the recommendations of the underwriters and in all respects in a manner consistent with the resale of securities in an offering of a similar size to for its own account at such ~~offering of the Registrable Securities~~time. (p) The Company shall use its commercially reasonable efforts to procure the cooperation of the Company's transfer agent in settling any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by the Holder(s) or the underwriters. (q) In the event a Holder has notified the Company that the method of distribution pursuant to the Demand Request is by means of an underwritten offering, the underwriter or underwriters shall be selected by the Company and shall be approved by the Holder(s), which approval shall not be unreasonably withheld or delayed, provided, (i) that all of the representations and warranties by the Company to and for the benefit of such underwriters shall also be made to and for the benefit of the Holder(s), (ii) that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of the Holder(s), and (iii) that the Holder(s) shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements (x) that are customary for a transaction of such nature, (y) regarding the Holder(s), the Registrable Securities and the Holders' intended method of distribution, and (z) any other representations required by law. Subject to the foregoing, the Holder(s) shall enter into an underwriting agreement in customary form with the underwriter or underwriters. If the Holder(s) disapprove(s) of the terms of the underwriting, the Holder(s) may elect to withdraw all its Registrable Securities by written notice to the Company and the managing underwriter. The securities so withdrawn shall also be withdrawn from registration. (r) The Company shall not hereafter enter into any agreement with respect to its securities, which conflicts with the rights granted to the Holders in this Agreement.

Appears in 1 contract

Samples: Stockholders' Agreement (Avanex Corp)

Common use of Registration Procedures, Rights and Obligations Clause in Contracts