REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made
and entered into as of January 11, 2000, among IGEN International, Inc., a
Delaware corporation (the "COMPANY"), and the other parties who have executed
this Agreement and whose names appear on Schedule I hereto (each party listed on
Schedule I hereto is sometimes individually referred to herein as a "PURCHASER"
and all such parties are sometimes collectively referred to herein as the
"PURCHASERS").
This Agreement is made pursuant to the Securities Purchase
Agreement, dated as of the date hereof among the Company and the Purchasers (the
"PURCHASE AGREEMENT").
The Company and the Purchasers hereby agree as follows:
1. DEFINITIONS
Capitalized terms used and not otherwise defined herein shall
have the meanings given such terms in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"ADVICE" has meaning set forth in Section 3(o) hereof.
"AFFILIATE" means, with respect to any Person, any other
Person that directly or indirectly controls or is controlled by or under common
control with such Person. For the purposes of this definition, "CONTROL," when
used with respect to any Person, means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "AFFILIATED," CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"AMEX" has the meaning set forth in Section 2(d) hereof.
"BUSINESS DAY" means any day except Saturday, Sunday and any
day which shall be a legal holiday or a day on which banking institutions in the
State of New York generally are authorized or required by law or other
government actions to close.
"BLACK-OUT PERIOD" has the meaning set forth in Section 3(q)
hereof.
"CLOSING DATE" shall mean the Closing Date as defined in the
Purchase Agreement.
"COMMISSION" means the Securities and Exchange Commission.
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"COMMON STOCK" means the Company's Common Stock, par value
$.001 per share.
"EFFECTIVENESS DATE" means the earlier of (i) the tenth
Business Day after the Company has received notice (written or oral) from the
Commission that the Commission Staff will not be reviewing the Registration
Statement or has no further comments on the Registration Statement or (ii) the
120th day following the Closing Date; PROVIDED, HOWEVER, that the Effectiveness
Date shall be extended to up to the 150th day following the Closing Date if the
Initial Registration Statement is not declared effective by the Commission prior
to the 120th day following the Closing Date due to delays which are attributable
to the Commission, so long as the Company responds to any comments received from
the Commission in a commercially reasonably manner and as promptly as
practicable, but in no event later than twenty (20) Business Days from the
receipt thereof.
"EFFECTIVENESS PERIOD" has the meaning set forth in Section
2(a) hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EVENT" has the meaning set forth in Section 2(d) hereof.
"FILING DATE" means as soon as practicable but in no event
later than the 30th day following the Closing Date.
"HOLDER" or "HOLDERS" means the holder or holders, as the case
may be, from time to time of Registrable Securities.
"INDEMNIFIED PARTY" has the meaning set forth in Section 5(c)
hereof.
"INDEMNIFYING PARTY" has the meaning set forth in Section 5(c)
hereof.
"INITIAL REGISTRATION DELAY PAYMENT" has the meaning set forth
in Section 2(d) hereof.
"INITIAL REGISTRATION STATEMENT" has the meaning set forth in
Section 2(a) hereof.
"LOSSES" has the meaning set forth in Section 5(a) hereof.
"MAJORITY HOLDERS" means the Holders of at least fifty (50%)
percent of the Registrable Securities.
"NASDAQ" has the meaning set forth in Section 2(d).
"NYSE" has the meaning set forth in Section 2(d).
"OBJECTIONS" has the meaning set forth in Section 3(a).
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"PERSON" means an individual or a corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
"PROCEEDING" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"PROSPECTUS" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference in such Prospectus.
"REGISTRABLE SECURITIES" means the shares of Common Stock
issued or issuable upon (i) conversion of or with respect to the Securities,
(ii) any other payments in respect of the Securities, (iii) exercise of the
Warrants, and (iv) any shares of the Company's capital stock issued with respect
to (i), (ii) or (iii) as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise.
"REGISTRATION DELAY PAYMENT" means either an Initial
Registration Delay Payment or a Secondary Registration Delay Payment.
"REGISTRATION STATEMENT" means the Initial Registration
Statement and any additional registration statements contemplated by Sections
2(a), 2(b) and 6(d) hereof, including (in each case) the Prospectus, amendments
and supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference in such registration statement.
"REQUIRED MINIMUM SHARES" has the meaning set forth in the
Purchase Agreement.
"RULE 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"RULE 158" means Rule 158 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
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"RULE 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"SECONDARY REGISTRATION DELAY PAYMENT" has the meaning set
forth in Section 2(d) hereof.
"SECURITIES" means the Company's 5% Subordinated Convertible
Debentures issuable pursuant to the Purchase Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SPECIAL COUNSEL" means one special counsel to the Holders,
for which the Holders will be reimbursed by the Company pursuant to Section 4
hereof.
"STATED MATURITY" has the meaning assigned it in the
Securities.
"TRADING DAY" means a day on which the Nasdaq (or in the event
the Common Stock is not traded on Nasdaq, such other securities market on which
the Common Stock is listed) is open for trading.
"UNDERLYING SHARES" means the shares of Common Stock issuable
upon conversion of the Securities and exercise of the Warrants.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING" means a
registration in connection with which securities of the Company are sold to an
underwriter for reoffering to the public pursuant to an effective registration
statement, whether on a firm commitment or best efforts basis.
"WARRANTS" means the warrants issuable pursuant to the
Purchase Agreement.
2. REGISTRATION REQUIREMENTS
(a) FILING AND EFFECTIVENESS OBLIGATIONS. On or prior to the
Filing Date, the Company shall prepare and file with the Commission a
Registration Statement (the "INITIAL REGISTRATION STATEMENT") which shall cover
all Registrable Securities for an offering to be made on a continuous basis
pursuant to a "Shelf" registration statement under Rule 415. The Initial
Registration Statement shall be on Form S-3 or any successor form (except if the
Company is not then eligible to register for resale the Registrable Securities
on Form S-3, in which case such registration shall be on another appropriate
form in accordance herewith, subject to the reasonable consent of the Majority
Holders). The Company shall (i) not permit any securities other than the
Registrable Securities to be included in the Initial Registration Statement and
(ii) use all commercially reasonable efforts to cause the Initial Registration
Statement to be declared effective under the Securities Act as promptly as
possible after the filing thereof, but in any event on or prior to the
Effectiveness Date, and to take all commercially reasonable steps to keep such
Initial Registration Statement continuously effective under the Securities Act,
(except for any
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delays which are attributable to changes required by the Purchasers in the
Registration Statement with respect to information relating to the Purchasers,
or to the failure of the Purchasers to conduct their review of the Initial
Registration Statement pursuant to Section 3(a), which shall not be deemed to be
a violation of this obligation), until the date which is three years after the
date that such Initial Registration Statement is declared effective by the
Commission or such earlier date when all Registrable Securities covered by such
Initial Registration Statement have been sold or may be sold without volume
restrictions pursuant to Rule 144, without regard to whether the holder of the
Registrable Securities is an affiliate of the Company, as determined by counsel
to the Company pursuant to a written opinion letter, addressed to the Holders
and the Company's transfer agent to such effect (the "EFFECTIVENESS PERIOD").
The number of shares of Common Stock initially included in the Initial
Registration Statement shall be no less than the Required Minimum Shares.
(b) UNDERWRITTEN OFFERING. In addition to the Initial
Registration Statement, at any time when a Registration Statement covering the
Registrable Securities is not effective (during any period in which a
Registration Statement is required to be effective during the Effectiveness
Period), if the Holders of a majority of the Registrable Securities covered by a
Registration Statement so elect by written notice to the Company on or after
July 11, 2000, an offering of Registrable Securities pursuant to such
Registration Statement may be effected on no more than one (1) occasion in the
form of an Underwritten Offering. In such event, and if the managing
underwriters advise the Company and such Holders in writing that in their
opinion the amount of Registrable Securities proposed to be sold in such
Underwritten Offering exceeds the amount of Registrable Securities which can be
sold in such Underwritten Offering, there shall be included in such Underwritten
Offering the amount of such Registrable Securities which in the opinion of such
managing underwriters can be sold, and such amount shall be allocated PRO RATA
among the Holders proposing to sell Registrable Securities in such Underwritten
Offering.
(c) UNDERWRITER. If any of the Registrable Securities are to
be sold in an Underwritten Offering pursuant to Section 2(b) hereof, the
investment banker in interest that will administer the offering will be selected
by the Holders of a majority of the Registrable Securities included in such
offering and be reasonably satisfactory to the Company. No Holder may
participate in any Underwritten Offering hereunder unless such Holder (i) agrees
to sell its Registrable Securities on the basis provided in accordance with any
underwriting agreements approved by the Persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such arrangements.
(d) PENALTIES. If (i) the Initial Registration Statement
covering all the applicable Registrable Securities and required to be filed by
the Company pursuant to this Agreement is not (A) filed with the Commission on
or before the Filing Date or (B) declared effective by the Commission on or
before the Effectiveness Date or, (ii) on any day after the Registration
Statement has been declared effective by the Commission (A) sales of all the
Registrable Securities required to be included on a Registration Statement
cannot be made pursuant to the Registration Statement (including, without
limitation, because of a failure to keep the Registration Statement effective,
to disclose such information as is necessary for sales to be made pursuant to
the Registration Statement, or to register sufficient shares of Common Stock
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but excluding any periods during which the Registrable Securities cannot be sold
due to any required update or amendment of the Registration Statement pursuant
to Section 3(b) hereof, provided that each such period shall not exceed twenty
(20) Business Days, or in the event of a Black-Out Period declared by the
Company pursuant to Section 3(q) hereof) or (B) the Common Stock is not listed
or included for quotation on the National Market System of the Nasdaq Stock
Market ("NASDAQ"), the New York Stock Exchange ("NYSE") or the American Stock
Exchange (the "AMEX") after being so listed or included for quotation or (iii)
the Company shall otherwise fail to file a Registration Statement required by
Section 2(a) hereof, (each such event specified in (i), (ii) and (iii) above, an
"EVENT"), then, as partial relief for the damages to any Holder by reason of any
such delay in or reduction of its ability to sell the Registrable Securities
(which remedy shall not be exclusive of any other remedies available at law or
in equity) commencing on the date of the Event, the Company shall pay to each
Holder an amount in cash (a "INITIAL REGISTRATION DELAY PAYMENT") equal to (a)
the then principal amount of the Securities at the stated maturity (and, in the
case of Holders, the principal amount of Securities from which such Registrable
Securities were converted), multiplied by (b) two hundredths (.020) times the
sum of: (i) the number of months (prorated for partial months) after the end of
the Effectiveness Date and prior to the date the Registration Statement is
declared effective by the Commission, PROVIDED, HOWEVER, that there shall be
excluded from such period (A) any delays which are attributable to changes
required by the Purchasers in the Registration Statement with respect to
information relating to the Purchasers, or to the failure of the Purchasers to
conduct their review of the Registration Statement pursuant to Section 3(a) and
(B) any periods during which an Objection has been made and is pending, provided
that each such period shall not exceed twenty (20) Business Days; PROVIDED,
FURTHER, that with respect to Section 2(d)(i)(B) hereof, there shall be excluded
from such period any delays which are attributable to the Commission during the
150-day period following the Filing Date, so long as the Company responds as
promptly as practicable, but in no event later than twenty (20) Business Days,
to any comments received from the Commission, (ii) the number of months
(prorated for partial months) that sales cannot be made pursuant to the
Registration Statement after the Registration Statement has been declared
effective (including, without limitation, when sales cannot be made by reason of
the Company's failure to properly supplement or amend the Prospectus in
accordance with the terms of this Agreement, or otherwise, but excluding (A) any
period when such sales cannot be made solely by reason of any act or omission
attributable to the Purchasers, (B) any periods during which the Registrable
Securities cannot be sold due to any update or amendment of the Registration
Statement pursuant to Section 3(b) hereof, provided that each such period shall
not exceed twenty (20) Business Days, or in the event of a Black-Out Period
declared by the Company pursuant to Section 3(q) hereof and, (C) any periods
during which an Objection has been made and is pending, provided that each such
period shall not exceed twenty (20) Business Days) or (iii) the number of months
(prorated for partial months) that the Common Stock is not listed or included
for quotation on the Nasdaq, NYSE or AMEX or that trading thereon is halted
after the Registration Statement has been declared effective. The Company shall
pay any required Registration Delay Payments to each Holder in cash on the last
Business Day of each month during which an Event has occurred and is continuing.
In addition, if the Initial Registration Statement covering all the
applicable Registrable Securities and required to be filed by the Company
pursuant to this Agreement is not declared effective by the Commission on or
before the 151st day following the Closing Date, in lieu of the
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Initial Registration Delay Payment, the Company shall pay to each Holder an
amount in cash (the "Secondary Registration Delay Payment") equal to (a) the
then principal amount of the Securities at the stated maturity (and, in the case
of Holders, the principal amount of Securities from which such Registrable
Securities were converted), multiplied by (b) three hundredths (.03) times the
sum of: (i) the number of months (prorated for partial months) after the 150th
day following the Closing Date and prior to the date the Registration Statement
is declared effective by the Commission, PROVIDED, HOWEVER, that there shall be
excluded from such period (A) any delays which are attributable to changes
required by the Purchasers in the Registration Statement with respect to
information relating to the Purchasers, or to the failure of the Purchasers to
conduct their review of the Registration Statement pursuant to Section 3(a) and
(B) any periods during which the Registrable Securities cannot be sold due to
any update or amendment of the Registration Statement pursuant to Section 3(b)
hereof, provided that each such period shall not exceed twenty (20) Business
Days, or in the event of a Black-Out Period declared by the Company pursuant to
Section 3(q) hereof and, (C) any periods during which an Objection has been made
and is pending, provided that each such period shall not exceed twenty (20)
Business Days.
In the event the Company fails to make any Registration Delay Payment
within ten (10) Business Days of the date such Registration Delay Payment is
due, such Registration Delay Payment shall bear interest at the rate of 2.0% per
month (prorated for partial months) until paid in full.
3. REGISTRATION PROCEDURES
In connection with the Company's registration obligations
hereunder, the Company shall:
(a) PREPARATION OF REGISTRATION STATEMENT. Prepare and file
with the Commission on or prior to the Filing Date a Registration Statement on
Form S-3 or its successor form (or if the Company is not then eligible to
register for resale the Registrable Securities on Form S-3 such registration
shall be on another appropriate form in accordance herewith) (which shall
include a Plan of Distribution substantially in the form of EXHIBIT A annexed
hereto, unless in connection with an Underwritten Offering), and cause the
Registration Statement to become effective and remain effective as provided
herein; PROVIDED, HOWEVER, that not less than three (3) Business Days prior to
the filing of the Registration Statement or any related Prospectus or any
amendment or supplement thereto (including any document that would be
incorporated therein by reference, except to the extent that such documents are
otherwise available on EDGAR), the Company shall, if reasonably practicable,
furnish to the Holders, their Special Counsel and any managing underwriters,
copies of all such documents proposed to be filed (including documents
incorporated by reference, except to the extent that such documents are
otherwise available on EDGAR) which documents will be subject to the review of
such Holders, their Special Counsel and such managing underwriters. Such
Registration Statement shall comply with the applicable requirements of Form
S-3, the Securities Act, the Exchange Act and the rules and regulations
thereunder. The Company shall not file the Registration Statement or any such
Prospectus or any amendments or supplements thereto to which the Majority
Holders, their Special Counsel and any managing underwriters shall reasonably
object, and will not request acceleration of such
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Registration Statement without prior notice to such counsel (an "Objection").
The sections of such Registration Statement covering information with respect to
the Holders, the Holder's beneficial ownership of securities of the Company or
the Holders intended method of disposition of Registrable Securities shall
conform to the information provided to the Company by each of the Holders.
(b) AMENDMENTS. (i) Prepare and file with the Commission such
amendments, including post-effective amendments, to the Registration Statement
as may be necessary to keep the Registration Statement continuously effective
for the Effectiveness Period and prepare and file with the Commission such
additional Registration Statements as are required to be filed hereunder in
order to register for resale under the Securities Act all of the Registrable
Securities, unless the Majority Holders, their Special Counsel and any managing
underwriters shall make an Objection, (ii) cause the related Prospectus to be
amended or supplemented by any required Prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act, (iii) respond as
promptly as possible to any comments received from the Commission with respect
to the Registration Statement or any amendment thereto and as promptly as
practicable, but in no event later than fifteen (15) Business Days, provide the
Holders true and complete copies of all correspondence from and to the
Commission relating to the Registration Statement, but only to the extent that
such correspondence relates to the Holders' beneficial ownership of securities
of the Company or the Holders intended method of disposition of Registrable
Securities, and (iv) comply in all material respects with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of all
Registrable Securities covered by the Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
Holders thereof set forth in the Registration Statement as so amended or in such
Prospectus as so supplemented. In the event the number of shares available under
a Registration Statement filed pursuant to this Agreement is insufficient to
cover the Registrable Securities issued or issuable upon conversion of the
Securities and exercise of the Warrants, the Company shall amend the
Registration Statement, or file a new Registration Statement (on the short form
available therefore, if applicable), or both, so as to cover the Registrable
Securities, in each case as soon as practicable, but in any event within twenty
(20) Business Days after the necessity therefor arises (based on the Conversion
Price of the Securities and other relevant factors on which the Company
reasonably elects to rely). The Company shall use all commercially reasonable
efforts to cause such amendment and/or new Registration Statement to become
effective as soon as practicable following the filing thereof, but in no event
later than ninety (90) days after the date on which the Company reasonably first
determines (or reasonably should have determined) the need therefor. The
provisions of Section 2(d) shall be applicable with respect to such obligation.
(c) NOTIFICATIONS. Notify the Holders of Registrable
Securities to be sold, their Special Counsel, and any managing underwriters, as
promptly as possible (and, in the case of (i)(a) below, not less than five (5)
days prior to such filing and, in the case of (i)(c) below, not later than the
first Business Day after effectiveness) and (if requested by any such Person)
confirm such notice in writing no later than one (1) Business Day following the
day (i) (a) when a Prospectus or any Prospectus supplement or post-effective
amendment to the Registration Statement is proposed to be filed, (b) when the
Commission notifies the Company whether there
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will be a "review" of such Registration Statement and whenever the Commission
comments in writing on such Registration Statement and (c) with respect to the
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the Commission or any other Federal or state
governmental authority for amendments or supplements to the Registration
Statement or Prospectus or for additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement covering any or all of the Registrable Securities or the
initiation of any Proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation or threatening of any Proceeding for such
purpose, (v) of the occurrence of any event that makes any statement made in the
Registration Statement or Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue in any material respect or that
requires any revisions to the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the Prospectus,
as the case may be, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading and (vi) the beginning and end of a Black-Out Period
pursuant to Section 3(q).
(d) SUSPENSIONS. Use all commercially reasonable efforts to
avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order
suspending the effectiveness of the Registration Statement or (ii) any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest practicable
moment.
(e) SUPPLEMENTS AND POST-EFFECTIVE AMENDMENTS. If requested by
any managing underwriter or the Holders of a majority in interest of the
Registrable Securities to be sold in connection with an Underwritten Offering
(i) promptly incorporate in a Prospectus supplement or post-effective amendment
to the Registration Statement such information regarding the Holders or the plan
of distribution as the Company reasonably agrees should be included therein and
(ii) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus supplement or
post-effective amendment; PROVIDED, HOWEVER, that the Company shall not be
required to take any action pursuant to this Section 3(e) that would, in the
written opinion of counsel for the Company (addressed to counsel to the Holder),
violate applicable law.
(f) COPIES OF REGISTRATION STATEMENT. Furnish to each Holder,
their Special Counsel, and any managing underwriters, without charge, at least
one conformed copy of each Registration Statement and each amendment thereto,
including financial statements and schedules, all documents incorporated or
deemed to be incorporated therein by reference, and all exhibits to the extent
requested by such Person (including those previously furnished or incorporated
by reference) promptly after the filing of such documents with the Commission.
(g) COPIES OF PROSPECTUS. Promptly deliver to each Holder,
their Special Counsel, and any underwriters, without charge, as many copies of
the Prospectus or Prospectuses
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(including each form of prospectus) and each amendment or supplement thereto as
such Persons may reasonably request; and the Company hereby consents to the use
of such Prospectus and each amendment or supplement thereto by each of the
selling Holders and any underwriters in connection with the offering and sale of
the Registrable Securities covered by such Prospectus and any amendment or
supplement thereto.
(h) BLUE SKY. Prior to any public offering of Registrable
Securities, use its all commercially reasonable efforts to register or qualify
or cooperate with the selling Holders, any underwriters and their Special
Counsel in connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any Holder or underwriter requests in writing, to keep each
such registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by a Registration Statement; PROVIDED, HOWEVER, that the
Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or subject the Company to any material tax in any such
jurisdiction where it is not then so subject.
(i) CERTIFICATES. Cooperate with the Holders and any managing
underwriters to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold pursuant to a Registration
Statement, which certificates shall be free, to the extent permitted by
applicable law and the Purchase Agreement, of all restrictive legends, and to
enable such Registrable Securities to be in such denominations and registered in
such names as any such managing underwriters or Holders may request to
facilitate the timely closing of such sales.
(j) SUPPLEMENTS AND AMENDMENTS. Upon the occurrence of any
event contemplated by Section 3(c)(vi), as promptly as possible, prepare a
supplement or amendment, including a post-effective amendment, to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file any
other required document so that, as thereafter delivered, neither the
Registration Statement nor such Prospectus will contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(k) LISTING. Cause all Registrable Securities relating to such
Registration Statement to be listed on Nasdaq and any other securities exchange,
quotation system, market or over-the-counter bulletin board, if any, on which
similar securities issued by the Company are then listed as and when required
pursuant to the Purchase Agreement subject to compliance with Rule 4460(i)(1)(D)
of Nasdaq.
(l) UNDERWRITING AGREEMENT. In the case of an Underwritten
Offering pursuant to Section 2(b), the Company shall enter into such customary
agreements (including underwriting agreements in customary form) to take all
other appropriate actions in order to expedite or facilitate the registration or
the disposition of the Registrable Securities, and in connection therewith, if
an underwriting agreement is entered into cause the same to contain
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indemnification provisions and procedures substantially identical to those set
forth in Section 5 (or such other provisions and procedures acceptable to the
managing underwriters, if any) with respect to all parties to be indemnified
pursuant to Section 5.
(m) DUE DILIGENCE. Provide each Holder and its representatives
the opportunity to conduct a reasonable inquiry of the Company's financial and
other records during normal business hours and make available its officers,
directors and employees for questions regarding information that such Holder may
reasonably request in order to fulfill any due diligence obligations on its
part.
(n) EARNINGS STATEMENT. Comply in all material respects with
all applicable rules and regulations of the Commission and make generally
available to its securityholders earning statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 not later than 45 days after
the end of any 3-month period (or 90 days after the end of any 12-month period
if such period is a fiscal year) (i) commencing at the end of any fiscal quarter
in which Registrable Securities are sold to underwriters in a firm commitment or
best efforts Underwritten Offering and (ii) if not sold to underwriters in such
an offering, commencing on the first day of the first fiscal quarter of the
Company after the effective date of the Registration Statement, which statement
shall conform to the requirements of Rule 158.
(o) INFORMATION. The Company may require each selling Holder
to furnish to the Company information regarding such Holder and the distribution
of such Registrable Securities as is required by law to be disclosed in the
Registration Statement, and the Company may exclude from such registration the
Registrable Securities of any such Holder who unreasonably fails to furnish such
information within a reasonable time after receiving such request, and such
shall not form the basis for, and shall be excluded from the calculation of,
penalties pursuant to Section 2(d) hereof. Each Holder shall furnish to the
Company information regarding the Holder and the distribution of the Registrable
Securities as is required, in the opinion of counsel to the Holder, by
applicable law to be disclosed in the Registration Statement and Prospectus, and
in the case of the Initial Registration Statement shall provide such information
within 10 days of the Closing Date.
The Company shall hold in confidence and not make any
disclosure of information concerning a Holder provided to the Company unless (i)
disclosure of such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information is necessary to avoid
or correct a misstatement or omission in any Registration Statement, (iii) the
release of such information is ordered pursuant to a subpoena or other order
from a court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than by
disclosure in violation of this or any other agreement. The Company agrees that
it shall, upon learning that disclosure of such information concerning a Holder
is sought in or by a court or governmental body of competent jurisdiction or
through other means, give prompt notice to such Holder prior to making such
disclosure, and allow the Holder, at its expense, to undertake appropriate
action to prevent disclosure of, or to obtain a protective order for, such
information.
If the Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require (if such
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reference to such Holder by name or otherwise is not required by the Securities
Act or any similar Federal statute then in force) the deletion of the reference
to such Holder in any amendment or supplement to the Registration Statement
filed or prepared subsequent to the time that such reference ceases to be
required.
Each Holder covenants and agrees that (i) it will not sell any
Registrable Securities under the Registration Statement until it has received
copies of the Prospectus as then amended or supplemented as contemplated in
Section 3(g) and notice from the Company that such Registration Statement and
any post-effective amendments thereto have become effective as contemplated by
Section 3(c) and (ii) it and its officers, directors or Affiliates, if any, will
comply with the prospectus delivery requirements of the Securities Act as
applicable to them in connection with sales of Registrable Securities pursuant
to the Registration Statement.
Each Holder agrees by its acquisition of such Registrable
Securities that, upon receipt of a notice from the Company of the occurrence of
any event of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv),
3(c)(v) or 3(c)(vi) such Holder will forthwith discontinue disposition of such
Registrable Securities under the Registration Statement until such Holder's
receipt of the copies of the supplemented Prospectus and/or amended Registration
Statement contemplated by Section 3(j), or until it is advised in writing (the
"ADVICE") by the Company that the use of the applicable Prospectus may be
resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus or Registration Statement. Notwithstanding anything
to the contrary, the Company shall cause its transfer agent to deliver
unlegended shares of Common Stock to a transferee of a Holder in accordance with
the terms of the Securities Purchase Agreement in connection with any sale of
Registrable Securities with respect to which an Holder has entered into a
contract for sale prior to the Holder's receipt of a notice from the Company of
the happening of any event of the kind described in Section 3(c)(ii), 3(c)(iii),
3(c)(iv), 3(c)(v) or 3(c)(vi) and for which the Holder has not yet settled,
provided that the Holder delivers an opinion of Akin, Gump, Strauss, Hauer &
Feld that the delivery of such shares does not violate federal securities laws,
Delaware corporate law or other applicable law.
(p) CONFIRMATION OF EFFECTIVENESS. Within two (2) Business
Days after a Registration Statement which covers applicable Registrable
Securities is ordered effective by the Commission, the Company shall deliver,
and shall cause legal counsel for the Company to deliver, to the transfer agent
for such Registrable Securities (with copies to the Holders whose Registrable
Securities are included in such Registration Statement) confirmation that such
Registration Statement has been declared effective by the Commission.
(q) BLACK-OUT PERIODS. Notwithstanding anything to the
contrary in this Agreement, the Company may delay the filing or effectiveness of
a Registration Statement, other than the Initial Registration Statement, or by
written notice require that the Holders immediately cease sales of Registrable
Securities (for a period not to exceed thirty (30) consecutive days in any one
instance and for a period not to exceed sixty (60) calendar days in any
twelve-month period (a "BLACK-OUT PERIOD")) pursuant to a Registration Statement
at any time that (i) the Company becomes engaged in a business activity or
negotiation which is not disclosed in a Registration Statement (or the
prospectus included therein) which the Company reasonably
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believes must be disclosed therein under applicable law and which the Company
desires to keep confidential for business purposes, (ii) the Company determines
that a particular disclosure so determined to be required to be disclosed
therein would be premature or would adversely affect the Company or its business
or prospects or (iii) the Registration Statement can no longer be used under the
existing rules and regulations promulgated under the Securities Act (each of
(i), (ii) or (iii), a "MATERIAL CONDITION"). The Company shall not be required
to disclose to the Holders which of the reasons specified in (i), (ii) or (iii)
above is the basis for requiring a suspension of sales due to the occurrence of
a Material Condition. The Company will use all commercially reasonable efforts
to ensure that the use of the Registration Statement (and the prospectus
included therein) may be resumed as soon as it is practicable.
4. REGISTRATION EXPENSES
All fees and expenses, other than underwriting discounts and
commissions, incident to the performance of or compliance with this Agreement by
the Company shall be borne by the Company, whether or not pursuant to an
Underwritten Offering and whether or not the Registration Statement is filed or
becomes effective and whether or not any Registrable Securities are sold
pursuant to the Registration Statement. The fees and expenses referred to in the
foregoing sentence shall include, without limitation, (i) all registration and
filing fees (including, without limitation, reasonable fees and expenses (A)
with respect to filings required to be made with Nasdaq and each other
securities exchange or market on which Registrable Securities are required
hereunder to be listed and (B) in compliance with state securities or Blue Sky
laws (including, without limitation, fees and disbursements of counsel for the
Holders in connection with Blue Sky qualifications of the Registrable Securities
and determination of the eligibility of the Registrable Securities for
investment under the laws of such jurisdictions as the managing underwriters, if
any, or the Holders of a majority of Registrable Securities may designate)),
(ii) printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities and of printing prospectuses if the
printing of prospectuses is requested by the managing underwriters, if any, or
by the Holders of a majority of the Registrable Securities included in the
Registration Statement), (iii) messenger, telephone and delivery expenses, (iv)
reasonable fees and disbursements of counsel for the Company and Special Counsel
for the Holders, (v) Securities Act liability insurance, if the Company so
desires such insurance, and (vi) fees and expenses of all other Persons retained
by the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be responsible
for all of its internal expenses incurred in connection with the consummation of
the transactions contemplated by this Agreement (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, and the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder.
5. INDEMNIFICATION
(a) INDEMNIFICATION BY THE COMPANY. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Holder, the officers, directors, agents (including any underwriters
retained by such Holder in connection with the offer and sale of Registrable
Securities), brokers (including brokers who offer and sell
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Registrable Securities as principal as a result of a pledge or any failure to
perform under a margin call of Common Stock), investment advisors and employees
of each of them, each Person who controls any such Holder (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, agents and employees of each such controlling Person, to
the fullest extent permitted by applicable law, from and against any and all
joint or several losses, claims, damages, liabilities, costs (including, without
limitation, costs of preparation and attorneys' fees) and expenses
(collectively, together with actions, proceedings or inquiries by any regulatory
or self-regulatory organization, whether commenced or threatened, "LOSSES"), as
incurred, arising out of or relating to (i) any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any
Prospectus or any form of prospectus or in any amendment or supplement thereto
or in any preliminary Prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of any Prospectus or form
of prospectus or supplement thereto, in light of the circumstances under which
they were made) not misleading (in the case of any Prospectus or form of
prospectus or supplement thereto, in light of the circumstances under which they
were made), except to the extent, but only to the extent, that such untrue
statements or omissions are based solely upon and in conformity with information
regarding such Holder furnished in writing to the Company by such Holder
expressly for use therein, or to the extent that such information relates to
such Holder or such Holder's proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in the Registration Statement, such Prospectus or such form of
prospectus or in any amendment or supplement thereto (provided that the Company
amended any disclosure with respect to the method of distribution upon written
notice from the Holders that such section of the Prospectus should be revised in
any way) or (ii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any other law, including, without limitation,
any state securities law, or any rule or regulation thereunder relating to the
offer or sale of Registrable Securities. The Company shall not, however, be
liable for any Losses to any Holder with respect to any untrue or alleged untrue
statement of material fact or omission or alleged omission of material fact if
such statement or omission was made in a preliminary Prospectus and such Holder
did not receive a copy of the final Prospectus (or any amendment or supplement
thereto) at or prior to the confirmation of the sale of the Registrable
Securities in any case where such delivery is required by the Securities Act and
the untrue or alleged untrue statement of material fact or omission or alleged
omission of material fact contained in such preliminary Prospectus was corrected
in the final Prospectus (or any amendment or supplement thereto), unless the
failure to deliver such final Prospectus (as amended or supplemented) was a
result of noncompliance by the Company with Section 3(g) of this Agreement. The
Company shall notify the Holders promptly of the institution, threat or
assertion of any Proceeding of which the Company is aware in connection with the
transactions contemplated by this Agreement.
(b) INDEMNIFICATION BY HOLDERS. Each Holder shall, severally
and not jointly, indemnify and hold harmless the Company, the directors,
officers, agents and employees of the Company, each Person who controls the
Company (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act), and the directors, officers, agents or employees of such
controlling Persons, to the fullest extent permitted by applicable law, from and
against all Losses, as incurred, arising solely out of or based solely upon any
untrue
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statement of a material fact contained in the Registration Statement, any
Prospectus, or any form of prospectus, or in any amendment or supplement thereof
or in any preliminary Prospectus arising solely out of or based solely upon any
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading to the extent, but only to the extent,
that such untrue statement or omission is contained in any information so
furnished in writing by such Holder to the Company specifically for inclusion in
the Registration Statement or such Prospectus to the extent that such
information relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and expressly approved
in writing by such Holder expressly for use in the Registration Statement, such
Prospectus or such form of prospectus; PROVIDED, HOWEVER, that the indemnity
agreement contained in this Section 5(b) shall not apply to amounts paid in
settlement of any Losses if such settlement is effected without the prior
written consent of such Holder, PROVIDED, FURTHER, that such Holder agrees its
consent to any such settlement will not be unreasonably withheld if such Holder
will not be liable for any payments or incur any out-of-pocket expenses with
respect to such settlement. In no event shall the liability of any selling
Holder hereunder be greater in amount than the dollar amount of the net proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any Proceeding
shall be brought or asserted against any Person entitled to indemnity hereunder
(an "INDEMNIFIED PARTY"), such Indemnified Party promptly shall notify the
Person from whom indemnity is sought (the "INDEMNIFYING PARTY") in writing, and
the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of all fees and expenses incurred in connection with defense thereof;
PROVIDED, HOWEVER, that the failure of any Indemnified Party to give such notice
shall not relieve the Indemnifying Party of its obligations or liabilities
pursuant to this Agreement, except (and only) to the extent that it shall be
finally determined by a court of competent jurisdiction (which determination is
not subject to appeal or further review) that such failure shall have
proximately and materially adversely prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (i) the Indemnifying Party has agreed in
writing to pay such fees and expenses, or (ii) the Indemnifying Party shall have
failed promptly to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Proceeding upon
the Indemnifying Party's receipt of notice of the Proceedings, or (iii) the
named parties to any such Proceeding (including any impleaded parties) include
both such Indemnified Party and the Indemnifying Party, and such Indemnified
Party shall have been advised by counsel that a conflict of interest is likely
to exist if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the reasonable
expense of the Indemnifying Party). The Indemnifying Party shall not be liable
for any settlement of any such Proceeding effected without its written consent,
which consent shall not be unreasonably withheld. No Indemnifying Party shall,
without the prior written consent of the
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Indemnified Party, effect any settlement of any pending Proceeding in respect of
which any Indemnified Party is a party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within ten (10) Business Days of written notice thereof to the
Indemnifying Party, which notice shall be delivered no more frequently than on a
monthly basis (regardless of whether it is ultimately determined that an
Indemnified Party is not entitled to indemnification hereunder; PROVIDED, that
the Indemnifying Party may require such Indemnified Party to undertake to
reimburse all such fees and expenses to the extent it is finally judicially
determined that such Indemnified Party is not entitled to indemnification
hereunder).
(d) CONTRIBUTION. If a claim for indemnification under Section
5(a) or 5(b) is unavailable to an Indemnified Party because of a failure or
refusal of a court of competent jurisdiction to enforce such indemnification in
accordance with its terms (by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses, in such proportion as is determined by a court of competent
jurisdiction to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 5(c), any reasonable attorneys' or other
reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in this Section was available to
such party in accordance with its terms. In no event shall any selling Holder be
required to contribute an amount under this Section 5(d) in excess of the net
proceeds received by such Holder upon sale of the Registrable Securities
pursuant to the Registration Statement giving rise to such contribution
obligation.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5(d) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this
Section are in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties.
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6. MISCELLANEOUS
(a) REMEDIES. In the event of a breach by the Company or by a
Holder of any of their obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. Neither the Company nor any of
its subsidiaries has, as of the date hereof, nor shall the Company or any of its
subsidiaries, on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
Except as disclosed in Schedule 2.1(r) of the Purchase Agreement, neither the
Company nor any of its subsidiaries has previously entered into any agreement
granting any registration rights with respect to any of its securities to any
Person. This Agreement, together with the Purchase Agreement, contain the entire
understanding of the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or written, with respect
to such matters.
(c) NO PIGGYBACK ON REGISTRATIONS. Except as disclosed on
Schedule 2.1(r) of the Purchase Agreement, neither the Company nor any of its
securityholders (other than the Holders in such capacity pursuant hereto) may
include securities of the Company in the Registration Statements and the Company
shall not after the date hereof enter into any agreement that prohibits or
restricts the obligations of the Company under Sections 2 or 3 hereof.
(d) PIGGY-BACK REGISTRATIONS. Except as provided herein if, at
any time during the Effectiveness Period when there is not an effective
Registration Statement covering the Registrable Securities, the Company shall
determine to prepare and file with the Commission a registration statement
relating to an offering for its own account or the account of others under the
Securities Act of any of its equity securities, other than on Form S-4 or Form
S-8 (each as promulgated under the Securities Act) or their then equivalents
relating to equity securities to be issued solely in connection with any
acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans, the Company shall
send to each Holder of Registrable Securities written notice of such
determination and, if within ten (10) days after receipt of such notice, any
such Holder shall so request in writing, (which request shall specify the
Registrable Securities intended to be disposed of by the Holders), the Company
will use reasonable efforts to effect the registration under the Securities Act
of all Registrable Securities which the Company has been so requested to
register by the Holder, to the extent requisite to permit the disposition of the
Registrable Securities so to be registered; PROVIDED, that if at any time after
giving written notice of its intention to register any securities and prior to
the effective date of the registration statement filed in connection with such
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registration, the Company shall determine for any reason not to register or to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to such Holder and, thereupon, (i) in the
case of a determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay expenses in accordance with Section 4 hereof),
and (ii) in the case of a determination to delay registering, shall be permitted
to delay registering any Registrable Securities being registered pursuant to
this Section 6(d) for the same period as the delay in registering such other
securities. The Company shall include in such registration statement all or any
part of such Registrable Securities such Holder requests to be registered;
PROVIDED, HOWEVER, that the Company shall not be required to register any
Registrable Securities pursuant to this Section 6(d) that are eligible for sale
pursuant to Rule 144(k) of the Securities Act. In the case of an underwritten
public offering, if the managing underwriter(s) or underwriter(s) should
reasonably object to the inclusion of the Registrable Securities in such
registration statement, then if the Company after consultation with the
Underwriter's representative should reasonably determine that the inclusion of
such Registrable Securities would materially adversely affect the offering
contemplated in such registration statement, and based on such determination
recommends inclusion in such registration statement of fewer Registrable
Securities then proposed to be sold by the Holders, then (x) the number of
Registrable Securities of the Holders included in such registration statement
shall be reduced pro rata among such Holders (based upon the number of
Registrable Securities requested to be included in the registration) or (y) none
of the Registrable Securities of the Holders shall be included in such
registration statement if the Company, after consultation with the
underwriter(s), recommends the inclusion of none of such Registrable Securities;
PROVIDED, HOWEVER, that if securities are being offered for the account of other
persons or entities as well as the Company, such reduction shall not represent a
greater fraction of the number of Registrable Securities intended to be offered
by the Holders than the fraction of similar reductions imposed on such other
persons or entities (other than the Company).
(e) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the same shall be in writing and signed by the Company
and the Majority Holders; PROVIDED, HOWEVER, that for the purposes of this
sentence only, Registrable Securities that are owned, directly or indirectly, by
the Company, or an Affiliate of the Company are not deemed outstanding.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders and that does not directly or indirectly affect the rights of other
Holders may be given by the Majority Holders to which such waiver or consent
relates; PROVIDED, HOWEVER, that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the provisions of
the immediately preceding sentence. Any amendment or waiver effected in
accordance with this Section shall be binding upon each Holder, each future
Holder, and the Company. Upon effectiveness of each such amendment or waiver,
the Company shall promptly give written notice thereof to
