FORM OF REGISTRATION RIGHTS AGREEMENT
EXHIBIT
4.7
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of
—, 2009 by
and among Oilsands Quest Inc., a Colorado corporation (the “Company”), and the several
holders who are signatories to this Agreement (each a “Holder,” and together the
“Holder”). Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
them in Section 1.1 hereof.
RECITALS
WHEREAS,
pursuant to multiple Subscription Agreements, each dated as of —, 2009
(collectively, the “Subscription Agreements”),
each between the Company and a Holder, the Company has agreed to issue and sell
to the Holders an aggregate of — shares (the
“Securities”) of the
Company’s common stock, $0.001 par value per share;
WHEREAS,
the obligations of the Company and the Holders under the Subscription Agreements
are conditioned upon, among other things, the execution and delivery of this
Agreement by the Company and the Holders.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
ARTICLE
I DEFINITIONS
1.1 Definitions. As
used in this Agreement, and unless the context requires a different meaning, the
following terms have the meanings indicated:
“Affiliate” means any Person
who is an “affiliate” as defined in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act.
“Agreement” means this
Agreement as the same may be amended, supplemented or modified in accordance
with the terms hereof.
“Allowable Suspension Period”
has the meaning set forth in Section 4.4.
“Board of Directors” means the
Board of Directors of the Company.
“Closing Date” has the meaning
set forth in the Subscription Agreements.
“Common Stock” means the
Company’s common stock, $0.001 par value per share, and any securities into
which such shares of common stock may hereinafter be reclassified.
“Company” has the meaning set
forth in the preamble to this Agreement.
“Holders” has the meaning set
forth in the preamble to this Agreement.
“Effectiveness Period” has the
meaning set forth in Section 3.2(a).
“Event” has the meaning set
forth in Section 3.3.
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“Event Payment Date” has the
meaning set forth in Section 3.3.
“Event Payment Shares” means
shares of Common Stock, if any, issued by the Company as Event Payments, or as
interest on Event Payments, pursuant to Section 3.3.
“Event Payments” has the
meaning set forth in Section 3.3.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the SEC thereunder.
“FINRA” means the Financial
Industry Regulatory Authority (or any successor entity thereto).
“Governmental Authority” means
the government of any nation, state, province, city, locality or other political
subdivision thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, and any
corporation or other entity owned or
“Indemnified Party” has the
meaning set forth in Section 5.3.
“Loss” has the meaning set
forth in Section 5.1.
“Person” means any individual,
firm, corporation, partnership, limited liability company, trust, incorporated
or unincorporated association, joint venture, joint stock company, limited
liability company, Governmental Authority or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
“Subscription Agreements” has
the meaning set forth in the recitals to this Agreement.
“Registrable Securities” means,
subject to Section 2.2 below (a) the Securities; (b) any Event Payment Shares;
and (c) any Common Stock issued as (or issuable upon the conversion or exercise
of any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of the
Securities or Event Payment Shares.
“Registration Expenses” has the
meaning set forth in Section 4.3.
“Registration Statement” means
a registration statement filed pursuant to the Securities Act.
“Required Effectiveness Date”
means the earlier of (i) the date that is sixty (60) days from the Closing Date
and (ii) the fifth (5th) business day after the Company is notified (orally or
in writing, whichever is earlier) by the SEC that a Registration Statement will
not be “reviewed” or will not be subject to further review, unless the
Registration Statement has been declared effective prior to such
date.
“Required Filing Date” has the
meaning set forth in Section 3.1.
“SEC” means the United States
Securities and Exchange Commission or any similar or successor agency then
having jurisdiction to enforce the Securities Act.
“SEC Guidance” means (i) any
publicly-available written or oral guidance, comments, requirements or requests
of the Staff and (ii) the Securities Act.
“Securities” has the meaning
set forth in the preamble to this Agreement.
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“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations of the SEC
promulgated thereunder.
“Staff” means the staff of the
SEC.
ARTICLE
II GENERAL; SECURITIES SUBJECT TO THIS
AGREEMENT
2.1 Grant of
Rights. The Company hereby grants registration rights to the
Holders upon the terms and conditions set forth in this Agreement.
2.2 Registrable
Securities. For the purposes of this Agreement, securities of
the Company listed in clauses (a), (b) and (c) of the definition of “Registrable
Securities” in Section 1.1 hereof will cease to be Registrable Securities, when
(i) a Registration Statement covering such Registrable Securities has been
declared effective under the Securities Act by the SEC and all such Registrable
Securities have been disposed of pursuant to such effective Registration
Statement, (ii) the entire amount of the Registrable Securities owned by a
Holders may be sold in a single sale, in the opinion of counsel satisfactory to
the Company and such Holders, each in their reasonable judgment (it being agreed
that Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP shall be satisfactory
counsel), pursuant to Rule 144 (or any successor provision then in effect) under
the Securities Act without any limitation as to volume and without the
requirement for the Company to be in compliance with the current public
information required under Rule 144 or (iii) such Registrable Securities have
been sold pursuant to Rule 144 under the Securities Act.
ARTICLE
III SHELF
REGISTRATION
3.1 Shelf Registration
Statement. Not later than thirty (30) days after the Closing
Date (such 30th day, the “Required Filing Date”), the
Company shall file with the SEC a registration statement on Form S-1 (or any
successor form thereto), subject to Section 3.5, with respect to the resale,
from time to time, on a continuous basis pursuant to Rule 415 of the Securities
Act of all of the Registrable Securities held by the Holders. The
Registration Statement shall contain substantially the “Plan of Distribution” attached
hereto as Annex
A. The disposition of Registrable Securities from the
Registration Statement may occur, at any time, in one or more underwritten
offerings, block transactions, broker transactions, at-market transactions or in
such other manner or manners as may be specified in the Plan of Distribution or
by the applicable Holders. Notwithstanding the registration
obligations set forth in this Section 3.1, in the event the SEC informs the
Company that all of the Registrable Securities cannot, as a result of the
application of Rule 415, be registered for resale as a secondary offering on a
single registration statement, the Company agrees to promptly (i) inform each of
the Holders thereof and use its commercially reasonable efforts to file
amendments to the initial Registration Statement as required by the SEC and/or
(ii) withdraw the initial Registration Statement and file a new Registration
Statement, in either case covering the maximum number of Registrable Securities
permitted to be registered by the SEC as a secondary offering on a single
registration statement; provided, however, that prior to filing such amendment
or new Registration Statement, the Company shall be obligated to use its
commercially reasonable efforts to advocate with the SEC for the registration of
all of the Registrable Securities in accordance with the SEC Guidance, including
without limitation, Compliance and Disclosure Interpretation
612.09. Notwithstanding any other provision of this Agreement and
subject to the payment of Event Payments in Section 3.3, if any SEC Guidance
sets forth a limitation of the number of Registrable Securities or other shares
of Common Stock permitted to be registered on a particular Registration
Statement as a secondary offering (and notwithstanding that the Company used
diligent efforts to advocate with the SEC for the registration of all or a
greater number of Registrable Securities), the number of Registrable Securities
or other shares of Common Stock to be registered on such Registration Statement
will be reduced as follows: first, the Company shall reduce or eliminate the
shares of Common Stock to be included by any Person other than a Holder; second,
the Company shall reduce or
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eliminate
any shares of Common Stock to be included by any Affiliate of the Company; and
third, the Company shall reduce the number of Registrable Securities to be
included by all other Holders on a pro rata basis based on the total number of
unregistered Registrable Securities held by such Holders, subject to a
determination by the SEC that certain Holders must be reduced before other
Holders based on the number of Registrable Securities held by such
Holders. In the event the Company amends the initial Registration
Statement or files a new Registration Statement, as the case may be, under
clauses (i) or (ii) above, the Company will use its commercially reasonable
efforts to file with the SEC, as promptly as allowed by the SEC or SEC Guidance
provided to the Company or to registrants of securities in general, one or more
Registration Statements on such form available to the Company to register for
resale those Registrable Securities that were not registered for resale on the
initial Registration Statement, as amended, or the new Registration
Statement. No Holder shall be named as an “underwriter” in any
Registration Statement without such Holder’s prior written consent.
3.2 Effective Shelf Registration
Statement.
(a) The
Company shall use its commercially reasonable efforts to cause each Registration
Statement to become effective as soon as practicable, but not later than the
Required Effectiveness Date, and shall use its commercially reasonable efforts
to keep the Registration Statement continuously effective under the Securities
Act, subject to the provisions of Section 4.4 hereof, until the earlier of (i)
such time as the Company delivers an opinion of counsel reasonably acceptable to
the Holders (it being agreed that Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
LLP shall be satisfactory counsel) that each Holder may sell in the open market
in a single transaction all Registrable Securities then held by each such Holder
pursuant to Rule 144 of the Securities Act (or any similar provision then in
force) without being subject to the volume limitations thereof and without the
requirement for the Company to be in compliance with the current public
information required under Rule 144 or (ii) all Registrable Securities
covered by such Registration Statement have been sold pursuant to such
Registration Statement or pursuant to Rule 144 (such period being the “Effectiveness
Period”). The Required Effectiveness Date shall be extended
without default or Event Payments hereunder in the event the Company’s failure
to obtain effectiveness of the Registration Statement on a timely basis results
from the failure of a Holder to timely provide the Company with information
requested by the Company and necessary to complete the Registration Statement in
accordance with the requirements of the Securities Act (in which case the
Required Effectiveness Date would be extended with respect to Registrable
Securities held by such Holder). The Company shall promptly notify
the Holders via facsimile or electronic mail of a “.pdf” format data file of the
effectiveness of a Registration Statement within one (1) business day of the
effective date of such Registration Statement. The Company shall, by 9:30 a.m.
New York City time on the first trading day after such effective date, file a
final prospectus with the SEC, as required by Rule 424(b).
3.3 Event
Payments. Should an Event (as defined below) occur then the
Company shall pay to each Holder (i) an amount in cash or in additional shares
of Common Stock (the form of such payment to be at the Company’s option) as
liquidated damages and not as a penalty, equal to five percent (5.0%) of the
purchase price paid by such Holder pursuant to its Subscription Agreement for
any Registrable Securities then held, which amount shall be immediately due and
payable; and (ii) upon each monthly anniversary of the occurrence of such Event
(each date in (i) and (ii) above, an “Event Payment Date”) unless or
until the Event is cured, the Company shall pay to each Holder an amount in cash
or in additional shares of Common Stock (the form of such payment to be at the
Company’s option) as liquidated damages and not as a penalty, equal to two
percent (2.0%) of the purchase price paid by such Holder pursuant to its
Subscription Agreement for any Registrable Securities then held as relief for
the damages suffered therefrom by the Holders (the parties hereto agreeing that
the liquidated damages provided for in this Section 3.3 constitute a reasonable
estimate of the damages that may be incurred by the Holders by reason of such
Event and that such liquidated damages represent the exclusive monetary remedy
for the Holders for damages suffered due to such Event; provided, however, that this
shall in no manner limit the Holders’ entitlement to specific performance as
provided for in Section 6.1). The payments to which a Holder shall be
entitled pursuant to this Section 3.3 are referred to herein as “Event Payments.” In
the event the Company fails to make Event Payments to an Holder within five (5)
business days after an Event Payment Date, such Event Payments owed to such
Holder shall bear interest in the form of cash or additional shares of Common
Stock (the form of such payment to be at the Company’s option) at the rate of
one percent (1.0%) per month (prorated for partial months) until paid in
full. The liquidated damages pursuant to the terms hereof shall apply
on a daily pro rata basis for any portion of a month prior to the cure of an
Event, except in the case of the first Event date. All pro rated
calculations made pursuant to this paragraph shall be based upon the actual
number of days in such pro rated month. Notwithstanding the foregoing
provisions, in no event shall the Company be obligated to pay such liquidated
damages (a) to more than one Holder in respect of the same Registrable
Securities for the same period of time, (b) in an aggregate amount that exceeds
fifteen percent (15.0%) of the purchase price paid by such Holder for its
Registrable Securities pursuant to its Subscription Agreement or (c) with
respect to more than one Event at the same time. In the event the
Company elects to make an Event Payment or interest payment under this Section
3.3 in shares of Common Stock, the number of shares of Common Stock to be issued
to a Holder hereunder shall equal the quotient determined by dividing (i) the
cash value of the Event Payment or interest payment, as applicable, due to such
Holder by (ii) the lesser of (A) the purchase price per share of Common Stock
under its Subscription Agreement and (B) the average closing price of the Common
Stock for the five (5) trading days immediately preceding the date of the
Event. The additional shares of Common Stock, if any, payable as
Event Payments shall, if permissible, be added to the Registration Statement
prior to being declared effective by the SEC; if it is not permissible to add
such shares of Common Stock to an existing Registration Statement, then the
Company shall use commercially reasonable efforts to include such shares on a
new Registration Statement as promptly as
practicable. Notwithstanding anything to the contrary set forth in
this Section 3.3, the Company shall not, without the prior written consent of a
Holder, be able to elect to make an Event Payment or interest payment to such
Holder in shares of Common Stock to the extent that, if after giving effect to
such issuance, the Holder, together with any person that shares a common
investment adviser with such Holder, would beneficially own, in the aggregate,
in excess of 9.9% of the outstanding shares of Common Stock immediately after
giving effect to such issuance. For purposes of the foregoing,
beneficial ownership and all determinations and calculations shall be determined
by the Holder in accordance with Section 13(d) of the Exchange Act and the rules
and regulations promulgated thereunder.
For such
purposes, each of the following shall constitute an “Event”: (i) a Registration
Statement covering all of the Registrable Securities is not filed with the SEC
on or prior to the Required Filing Date; (ii) a Registration Statement covering
all of the Registrable Securities is not declared effective on the Required
Effectiveness Date; (iii) after its effective date, (A) such Registration
Statement ceases for any reason (including without limitation by reason of a
stop order, or the Company’s failure to update the Registration Statement), to
remain continuously effective as to all Registrable Securities for which it is
required to be effective or (B) the Holders are not permitted to utilize the
prospectus therein to resell such Registrable Securities, in the case of (A) and
(B) (other than during an Allowable Suspension Period (as defined in Section
4.4)); (iv) a suspension period under Section 4.4 exceeds the length of an
Allowable Suspension Period; or (v) after the date six months following the
Closing Date, and only in the event the Registration Statement is not available
to sell Registrable Securities, the Company fails to file with the SEC any
required reports under Section 13 or 15(d) of the Exchange Act such that it is
not in compliance with Rule 144(c)(1) as a result of which the Holders who are
not affiliates are unable to sell Registrable Securities without restriction
under Rule 144.
3.4 Expenses. The
Company shall bear all Registration Expenses in connection with this ARTICLE
III, whether or not the Registration Statement becomes effective.
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3.5 Form S-3. Once the
Company becomes eligible to use Form S-3 for the registration of the resale of
Registrable Securities, the Company shall use commercially reasonable efforts to
register the Registrable Securities on Form S-3 promptly after such form is
available, provided that the Company shall maintain the effectiveness of the
Registration Statement then in effect until such time as a Registration
Statement on Form S-3 covering the Registrable Securities has been declared
effective by the SEC.
ARTICLE
IV REGISTRATION PROCEDURES
4.1 Obligations of the
Company. The Company shall:
(a) not less
than three (3) business days prior to the filing of a Registration Statement and
not less than one (1) business day prior to the filing of any related prospectus
or any amendment or supplement thereto (except for Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K and any similar
or successor reports), furnish to the Holders copies of such Registration
Statement, prospectus or amendment or supplement thereto, as proposed to be
filed, which documents will be subject to the review of such Holder (it being
acknowledged and agreed that if a Holder does not object to or comment on the
aforementioned documents within such three (3) business day or one (1) business
day period, as the case may be, then the Holder shall be deemed to have
consented to and approved the use of such documents). The Company
shall not file any Registration Statement or amendment or supplement thereto in
a form to which a Holder reasonably objects in good faith, provided that, the
Company is notified of such objection in writing within the three (3) business
days or one (1) business day period described above, as applicable;
(b) prepare
and file with the SEC such amendments and supplements to such Registration
Statement and the prospectus used in connection therewith as may be reasonably
necessary to keep such Registration Statement effective for the Effectiveness
Period, and shall comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the Holders set forth in such Registration
Statement;
(c) furnish
to each Holder, prior to filing a Registration Statement relating to Registrable
Securities, at least one executed copy of such Registration Statement as is
proposed to be filed, and thereafter such number of conformed copies of such
Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto), the prospectus included in such Registration
Statement (including each preliminary prospectus and any summary prospectus) and
such other documents or prospectus as each such Holder may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
Holder;
(d) register
or qualify such Registrable Securities under such other securities or “blue sky”
laws of such jurisdictions as any Holder may reasonably request, and continue
such registration or qualification in effect in such jurisdiction for as long as
permissible pursuant to the laws of such jurisdiction, or for as long as any
such Holder reasonably requests or until all of such Registrable Securities are
sold, whichever is shortest, and do any and all other acts and things which may
be reasonably necessary or advisable to enable any such Holder to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
Holder; provided, however, that the Company
shall not be required to (A) qualify generally to do business as a foreign
entity in any jurisdiction where it would not otherwise be required to qualify
but for this Section 4.1(d), (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such
jurisdiction;
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(e) promptly
notify each seller of Registrable Securities: (i) when a prospectus, any
prospectus supplement, a Registration Statement or a post-effective amendment to
a Registration Statement (but only if relating to Registrable Securities) has
been filed with the SEC, and, with respect to a Registration Statement or any
post-effective amendment (but only if relating to Registrable Securities), when
the same has become effective; (ii) of any comments or request by the SEC or any
other federal or state Governmental Authority for amendments or supplements to a
Registration Statement or related prospectus or for additional information (but
only if relating to Registrable Securities); (iii) of the issuance by the SEC or
any other Governmental Authority of any stop order suspending the effectiveness
of a Registration Statement relating to Registrable Securities or of any order
suspending or preventing the use of any related prospectus or the initiation or
threatening 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 proceedings for such
purpose; (v) of the existence of any fact or happening of any event (including
the passage of time) of which the Company has knowledge which makes any
statement of a material fact in such Registration Statement or related
prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue or which would require the making of any changes to the
Registration Statement or prospectus in order that, in the case of the
Registration Statement, 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 not misleading, and that in the case of
such prospectus, 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) determination by counsel of the Company that a
post-effective amendment or supplement to a Registration Statement relating to
Registrable Securities is advisable; provided, however, in no event shall any
such notice under this Section 4.1(e) contain any information which would
constitute material, non-public information regarding the Company or any of its
subsidiaries;
(f) upon the
occurrence of any event contemplated by clause (v) or (vi) of Section 4.1(e), as
promptly as practicable, prepare a supplement, amendment or post-effective to
such Registration Statement or related prospectus and furnish to each Holder a
reasonable number of copies of such supplement to or an amendment or
post-effective amendment of such Registration Statement or prospectus as may be
necessary so that, after delivery to the purchasers of such Registrable
Securities, in the case of the Registration Statement, 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 not misleading,
and that in the case of such prospectus, 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.
(g) Upon the
occurrence of any event contemplated by clauses (iii) or (iv) of Section 4.1(e),
as promptly as practicable, the Company shall use its commercially reasonable
efforts to promptly obtain the withdrawal of any such order or suspension and
shall immediately notify each seller of Registrable Securities of any such
withdrawal;
(h) cause all
such Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed; provided, that the applicable
listing requirements are satisfied;
(i) provide
reasonable cooperation to each Holder and each underwriter participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings
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(j) required
to be made with the FINRA; provided, that the Company
shall not be required to incur material expenses or obligations in connection
with its obligations under this Section 4.1(i);
and
(k) cooperate
with the Holders to facilitate the timely preparation and delivery of
certificates (or book-entry shares) representing such Registrable Securities to
be delivered to a transferee pursuant to a Registration Statement, which
certificates (or book-entry shares) shall be free of any restrictive legends and
in such denominations and registered in such names as such Holders may
request. Certificates for Registrable Securities free from all
restrictive legends may be transmitted by the transfer agent to a transferee by
crediting the account of such transferee’s prime broker with the Depository
Trust Company as directed by such transferee.
4.2 Seller
Information. The Company may require each Holder of
Registrable Securities as to which any registration is being effected to
furnish, and such Holder shall furnish, to the Company such information
regarding the distribution of such securities as the Company may from time to
time reasonably request in writing in response to requests made by the Staff or
to permit the Company to comply with the rules and regulations of the
SEC. The furnishing of such information shall be a condition to the
inclusion of the Holder’s Registrable Securities in such Registration
Statement.
4.3 Registration
Expenses. The Company shall pay all expenses arising from or
incident to its performance of, or compliance with, this Agreement, including,
without limitation, (i) SEC, stock exchange and FINRA registration and filing
fees, (ii) all fees and expenses incurred in complying with securities or “blue
sky” laws (including reasonable fees, charges and disbursements of counsel to
any underwriter incurred in connection with “blue sky” qualifications of the
Registrable Securities as may be set forth in any underwriting agreement), (iii)
all printing, messenger and delivery expenses, (iv) the reasonable fees, charges
and expenses of the Holders’ counsel (including without limitation the fees
charges and expenses incurred in connection with any amendments to a
Registration Statement), and (v) the reasonable fees, charges and expenses of
counsel to the Company and of its independent certified public accountants and
any other accounting fees, charges and expenses incurred by the Company
(including, without limitation, any expenses arising from any “cold comfort”
letters or any special audits incident to or required by any registration or
qualification), regardless of whether such Registration Statement is declared
effective. All of the expenses described in the preceding sentence of
this Section 4.3 are referred to herein as “Registration
Expenses.” The Holders of Registrable Securities sold pursuant
to a Registration Statement shall bear the expense of any broker’s commission or
underwriter’s discount or commission relating to registration and sale of such
Holders’ Registrable Securities.
4.4 Notice to
Discontinue. Each Holder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause (v) or (vi) of Section 4.1(e), such Holder shall forthwith discontinue
disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such Holder’s receipt of the copies
of the supplemented or amended prospectus contemplated by Section 4.1(f) and, if
so directed by the Company, such Holder shall deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such
Holder’s possession, of the prospectus covering such Registrable Securities
which is current at the time of receipt of such notice. If the
Company shall give any such notice, the Company shall extend the period during
which such Registration Statement shall be maintained effective pursuant to this
Agreement (including, without limitation, the period referred to in Section
4.1(b)) by the number of days during the period from and including the date of
the giving of such notice pursuant to clause (v) or (vi) of Section 4.1(e) to
and including the date when Holders of such Registrable Securities under such
Registration Statement shall have received the copies of the supplemented or
amended prospectus contemplated by, and meeting the requirements of, Section
44.1(f); provided,
that, no single suspension under this Section 4.4 shall exceed thirty
(30) days in any one hundred and eighty (180) day period and in no event shall
more than one suspension event exceed, in the aggregate, sixty (60) days in any
twelve (12) month period
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4.5 (each
suspension period complying with this provision being an “Allowable Suspension
Period”). In no event shall any such notice under this Section
4.4 contain any information that would constitute material, non-public
information regarding the Company or any of its subsidiaries. The Company will
use its commercially reasonable efforts to minimize periods during which the
Registration Statement is not effective. Notwithstanding anything to
the contrary, the Company shall cause its transfer agent to deliver unlegended
Common Stock (in certificated or book-entry form) to a transferee of a Holder in
connection with any sale of Registrable Securities with respect to which a
Holder has entered into a contract for sale prior to the Holder’s receipt of the
suspension notice and for which the Holder has not yet settled.
ARTICLE
V INDEMNIFICATION;
CONTRIBUTION
5.1 Indemnification by the
Company. The Company shall, notwithstanding any termination of
this Agreement, indemnify, defend and hold harmless each Holder, the officers,
directors, agents, partners, members, managers, stockholders, Affiliates 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, partners, members, managers, stockholders, agents
and employees of each such controlling Person, to the fullest extent permitted
by applicable law, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable costs of
preparation and investigation and reasonable attorneys’ fees) and expenses
(collectively, “Losses”), as incurred, that
arise out of or are based upon any untrue or alleged untrue statement of a
material fact contained in any 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 to state 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, except to the extent, but only to the extent, that (A) such
untrue statements, alleged untrue statements, omissions or alleged omissions are
based solely upon 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 approved by such
Holder expressly for use in the Registration Statement, such prospectus or such
form of prospectus or in any amendment or supplement thereto (it being
understood that each Holder has approved Annex A hereto for
this purpose), or (B) in the case of an occurrence of an event of the type
specified in Section 4.1(e)(iii)-(v), related to the use by a Holder of an
outdated or defective prospectus after the Company has notified such Holder in
writing that the prospectus is outdated or defective and prior to the receipt by
such Holder of written notice by the Company that the applicable prospectus (as
it may be supplemented or amended) may be resumed, but only if and to the extent
that following the receipt of such written notice the misstatement or omission
giving rise to such Loss would have been corrected. The Company shall
notify the Holders promptly of the institution, threat or assertion of any
proceeding arising from or in connection with the transactions contemplated by
this Agreement of which the Company is aware. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of an Indemnified Party.
5.2 Indemnification by
Purchasers. Each Holder shall, severally and not jointly,
indemnify and hold harmless the Company, its directors, officers, agents and
employees, 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
out of or are based upon any untrue or alleged untrue statement of a material
fact contained in any 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
EX-54
5.3 therein
or necessary to make the statements therein (in the case of any prospectus, or
any form of prospectus or supplement thereto, in light of the circumstances
under which they were made) not misleading (i) to the extent, but only to the
extent, that such untrue statements or omissions are based solely upon
information regarding such Holder furnished in writing to the Company by such
Holder expressly for use therein or (ii) to the extent, but only 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 approved by such
Holder expressly for use in a Registration Statement (it being understood that
the Holder has approved Annex A hereto for
this purpose), such prospectus or such form of prospectus or in any amendment or
supplement thereto or (iii) in the case of an occurrence of an event of the type
specified in Section 4.1(e)(iii)-(v), to the extent, but only to the extent,
related to the use by such Holder of an outdated or defective prospectus after
the Company has notified such Holder in writing that the prospectus is outdated
or defective and prior to the receipt by such Holder of written notice by the
Company that the applicable prospectus (as it may be supplemented or amended)
may be resumed, but only if and to the extent that following the receipt of such
written notice the misstatement or omission giving rise to such Loss would have
been corrected. 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.
5.4 Conduct of Indemnification
Proceedings. Any Person entitled to indemnification hereunder
(the “Indemnified
Party”) agrees to give prompt written notice to the indemnifying party
(the “Indemnifying
Party”) after the receipt by the Indemnified Party of any written notice
of the commencement of any action, suit, proceeding or investigation or threat
thereof made in writing for which the Indemnified Party intends to claim
indemnification or contribution pursuant to this Agreement; provided, however, that the failure to
so notify the Indemnifying Party shall not relieve the Indemnifying Party of any
liability or obligation that it may have to the Indemnified Party hereunder
(except to the extent that it shall be finally judicially determined by a court
of competent jurisdiction (which determination is not subject to appeal or
further review) that the Indemnifying Party has been materially prejudiced or
otherwise forfeited substantive rights or defenses by reason of such
failure). If notice of commencement of any such action is given to
the Indemnifying Party as above provided, the Indemnifying Party shall be
entitled to participate in and, to the extent it may wish, jointly with any
other Indemnifying Party similarly notified, to assume the defense of such
action at its own expense, with counsel chosen by it and reasonably satisfactory
to such Indemnified Party. The Indemnified Party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be paid by the
Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii)
the Indemnifying Party fails to promptly assume the defense of such action with
counsel reasonably satisfactory to the Indemnified Party or (iii) such parties
have been advised in writing by such counsel that either (x) representation of
such Indemnified Party and the Indemnifying Party by the same counsel would be
inappropriate under applicable standards of professional conduct or (y) there
may be one or more legal defenses available to the Indemnified Party which are
different from or additional to those available to the Indemnifying Party, in
any of such cases, the Indemnifying Party shall not have the right to assume the
defense of such action on behalf of such Indemnified Party, it being understood,
however, that the Indemnifying Party shall not be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all similarly-situated Indemnified Parties. No
Indemnifying Party shall be liable for any settlement entered into without its
written consent, which consent shall not be unreasonably withheld. No
Indemnifying Party shall, without the consent of such Indemnified Party, effect
any settlement of any pending or threatened proceeding in respect of which such
Indemnified Party is a party and indemnity has been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability for claims that are the subject matter
of such proceeding.
EX-55
5.5 Contribution.
(a) If the
indemnification provided for in this ARTICLE V from the Indemnifying Party is
unavailable to an Indemnified Party hereunder in respect of any Losses referred
to herein, then the 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 appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions which resulted in such Losses, as well as any other relevant
equitable considerations. The relative faults 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 to state a material
fact, has been 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. The
amount paid or payable by a party as a result of the Losses referred to above
shall be deemed to include, subject to the limitations set forth in Sections 5.1 and 5.2, any legal or
other fees, charges or expenses reasonably incurred by such party in connection
with any investigation or proceeding; provided, that the total
amount to be contributed by a Holder shall be limited to the net proceeds (after
deducting the underwriters’ discounts and commissions) received by such Holder
in the offering. No Person involved in the sale of Registrable
Securities who is guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) in connection with such sale shall be
entitled to indemnification or contribution from any Person involved in such
sale of Registrable Securities who is not guilty of fraudulent
misrepresentation.
(b) The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5.4 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in Section 5.4(a). 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.
5.6 The
indemnity and contribution agreements contained in this Article V are in
addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties and are not in diminution or limitation of the
indemnification provisions under the Subscription Agreements.
ARTICLE
VI MISCELLANEOUS
6.1 Remedies. The
Holders, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, shall be entitled to specific performance of
their rights under this Agreement. The Company agrees that monetary
damages alone (including those specified in Section 3.3) would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive in any action for specific
performance the defense that a remedy at law would be adequate.
6.2 No Piggyback on
Registrations. Neither the Company nor any of its security
holders (other than the Holders in such capacity pursuant hereto) may include
securities of the Company in a Registration Statement other than the Registrable
Securities without the consent of the Holders holding at least a majority of the
then outstanding Registrable Securities (such consent not to be unreasonably
withheld or delayed).
6.3 Notices. All
notices, demands and other communications provided for or permitted hereunder
shall be made in the manner provided for under the Subscription
Agreements.
EX-56
6.4 Successors and Assigns; Third Party
Beneficiaries. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of the parties hereto;
provided, that the
rights of the Holders contained in this Agreement shall be automatically
transferred to the transferee of any Registrable Security provided that (i) such
transferee agrees to become a party to this Agreement and be fully bound by, and
subject to, all of the terms and conditions of the Agreement as though an
original party hereto; (ii) the Company is furnished with written notice of (a)
the name and address of such transferee, and (b) the securities with respect to
which such registration rights are being transferred; (iii) immediately
following such transfer the further disposition of such securities by the
transferee is restricted under the Securities Act or applicable state securities
laws if so required; and (iv) such transfer shall have been conducted in
accordance with all applicable federal and state securities laws. All
of the obligations of the Company hereunder shall survive any
transfer. Except as provided in ARTICLE V, no Person other than the
parties hereto and their successors and permitted assigns are intended to be a
beneficiary of this Agreement.
6.5 Amendments and
Waivers. Except as otherwise provided herein, the provisions
of this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given unless
consented to in writing by (i) the Company and (ii) the Holders holding at least
two-thirds of the then outstanding Registrable Securities; provided, that if any such
amendment, modification, supplement, waiver, consent or departure would
adversely affect the rights, preferences or privileges of any Holder
disproportionately with respect to the rights, preferences and privileges of the
other Holders, such Holder’s consent in writing shall be required; provided further, any party
hereto may give a waiver in writing as to itself.
6.6 Counterparts. This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement. The parties hereto confirm that any facsimile copy of
another party’s executed counterpart of this Agreement (or its signature page
thereof) will be deemed to be an executed original thereof.
6.7 Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
6.8 GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF THAT WOULD IMPLICATE OR CAUSE THE LAWS OF
ANOTHER JURISDICTION TO APPLY.
6.9 Severability. If
any one or more of the provisions contained herein, or the application thereof
in any circumstance, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions hereof shall not be in
any way impaired, unless the provisions held invalid, illegal or unenforceable
shall substantially impair the benefits of the remaining provisions
hereof.
6.10 Entire
Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto with respect
to the subject matter contained herein. There are no restrictions,
promises, representations, warranties or undertakings with respect to the
subject matter contained herein, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such subject
matter.
EX-57
6.11 Further
Assurances. Each of the parties shall execute such documents
and perform such further acts (including, without limitation, obtaining any
consents, exemptions, authorizations or other actions by, or giving any notices
to, or making any filings with, any governmental authority or any other Person)
as may be reasonably required or desirable to carry out or to perform the
provisions of this Agreement.
6.12 Other
Agreements. Nothing contained in this Agreement shall be
deemed to be a waiver of, or release from, any obligations any party hereto may
have under any other agreement including, but not limited to, the Subscription
Agreements.
6.13 Termination. Except
for the liabilities or obligations under Section 4.3 or ARTICLE V, all of which
shall remain in effect in accordance with their terms, this Agreement and the
obligations of the parties hereunder (other than liability for the breach by any
party hereto of any of the terms of this Agreement) shall terminate upon the end
of the Effectiveness Period.
6.14 Independent Nature of Holders’
Obligations and Rights. The obligations of each Holder under
this Agreement are several and not joint with the obligations of any other
Holder hereunder, and no Holder shall be responsible in any way for the
performance of the obligations of any other Holder hereunder. The
decision of each Holder to purchase the Securities pursuant to its Subscription
Agreement has been made independently of any other Holder. Nothing contained
herein or in any other agreement or document delivered at any closing, and no
action taken by any Holder pursuant hereto or thereto, shall be deemed to
constitute the Holders as a partnership, an association, a joint venture or any
other kind of entity, or create a presumption that the Holders are in any way
acting in concert with respect to such obligations or the transactions
contemplated by this Agreement. Each Holder acknowledges that no
other Holder has acted as agent for such Holder in connection with making its
investment and that no Holder will be acting as agent of such Holder in
connection with monitoring its investment in the Securities or enforcing its
rights under this Agreement or any Subscription Agreement. Each Holder shall be
entitled to protect and enforce its rights, including, without limitation, the
rights arising out of this Agreement, and it shall not be necessary for any
other Holder to be joined as an additional party in any proceeding for such
purpose.
[Remainder
of page intentionally left blank]
EX-58
IN WITNESS WHEREOF, the undersigned have executed, or have caused
to be executed, this Registration Rights Agreement on the date first written
above.
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COMPANY:
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|
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By:
Name:
Title:
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EX-59
IN
WITNESS WHEREOF, the undersigned have executed, or have caused to be executed,
this Registration Rights Agreement on the date first written above.
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PURCHASERS:
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[INSERT
NAME]
By:
Name:
Title:
Address:
[INSERT
ADDRESS]
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EX-60
ANNEX A
PLAN
OF DISTRIBUTION
We are registering the Common Stock
issued to the selling stockholder to permit the resale of these shares of Common
Stock by the holders of the Common Stock from time to time after the date of
this prospectus. We will not receive any of the proceeds from the
sale by the selling stockholders of the Common Stock. We will bear
all fees and expenses incident to our obligation to register the Common
Stock.
The
selling stockholders may sell all or a portion of the Common Stock beneficially
owned by them and offered hereby from time to time directly or through one or
more underwriters, broker-dealers or agents. If the Common Stock is
sold through underwriters or broker-dealers, the selling stockholders will be
responsible for underwriting discounts or commissions or agent's
commissions. The Common Stock may be sold on any national securities
exchange or quotation service on which the securities may be listed or quoted at
the time of sale, in the over-the-counter market or in transactions otherwise
than on these exchanges or systems or in the over-the-counter market and in one
or more transactions at fixed prices, at prevailing market prices at the time of
the sale, at varying prices determined at the time of sale, or at negotiated
prices. These sales may be effected in transactions, which may involve crosses
or block transactions. The selling stockholders may use any one or
more of the following methods when selling shares:
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·
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ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
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·
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block
trades in which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
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·
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
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·
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an
exchange distribution in accordance with the rules of the applicable
exchange;
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·
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privately
negotiated transactions;
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·
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settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part;
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·
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broker-dealers
may agree with the selling stockholders to sell a specified number of such
shares at a stipulated price per
share;
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·
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through
the writing or settlement of options or other hedging transactions,
whether such options are listed on an options exchange or
otherwise;
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·
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a
combination of any such methods of sale;
and
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·
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any
other method permitted pursuant to applicable
law.
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EX-61
The
selling stockholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 under the Securities Act, as
permitted by that rule, or Section 4(1) under the Securities Act, if available,
rather than under this prospectus, provided that they meet the criteria and
conform to the requirements of those provisions.
Broker-dealers
engaged by the selling stockholders may arrange for other broker-dealers to
participate in sales. If the selling stockholders effect such transactions by
selling Common Stock to or through underwriters, broker-dealers or agents, such
underwriters, broker-dealers or agents may receive commissions in the form of
discounts, concessions or commissions from the selling stockholders or
commissions from purchasers of the Common Stock for whom they may act as agent
or to whom they may sell as principal. Such commissions will be in amounts to be
negotiated, but, except as set forth in a supplement to this prospectus, in the
case of an agency transaction will not be in excess of a customary brokerage
commission in compliance with NASD Rule 2440; and in the case of a principal
transaction a markup or markdown in compliance with NASD IM-2440.
In
connection with sales of the Common Stock or otherwise, the selling stockholders
may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the Common Stock in the
course of hedging in positions they assume. The selling stockholders
may also sell Common Stock short and if such short sale shall take place after
the date that this Registration Statement is declared effective by the
Commission, the selling stockholders may deliver Common Stock covered by this
prospectus to close out short positions and to return borrowed shares in
connection with such short sales. The selling stockholders may also
loan or pledge Common Stock to broker-dealers that in turn may sell such shares,
to the extent permitted by applicable law. The selling stockholders may also
enter into option or other transactions with broker-dealers or other financial
institutions or the creation of one or more derivative securities which require
the delivery to such broker-dealer or other financial institution of shares
offered by this prospectus, which shares such broker-dealer or other financial
institution may resell pursuant to this prospectus (as supplemented or amended
to reflect such transaction). Notwithstanding the foregoing, the selling
stockholders have been advised that they may not use shares registered on this
registration statement to cover short sales of our Common Stock made prior to
the date the registration statement, of which this prospectus forms a part, has
been declared effective by the SEC.
The
selling stockholders may, from time to time, pledge or grant a security interest
in some or all of the Common Stock owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell the Common Stock from time to time pursuant to this prospectus or
any amendment to this prospectus under Rule 424(b)(3) or other applicable
provision of the Securities Act of 1933, as amended, amending, if necessary, the
list of selling stockholders to include the pledgee, transferee or other
successors in interest as selling stockholders under this
prospectus. The selling stockholders also may transfer and donate the
Common Stock in other circumstances in which case the transferees, donees,
pledgees or other successors in interest will be the selling beneficial owners
for purposes of this prospectus.
The
selling stockholders and any broker-dealer or agents participating in the
distribution of the Common Stock may be deemed to be “underwriters” within the
meaning of Section 2(11) of the Securities Act in connection with such
sales. In such event, any commissions paid, or any discounts or
concessions allowed to, any such broker-dealer or agent and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Selling Stockholders who are
"underwriters" within the meaning of Section 2(11) of the Securities Act will be
subject to the applicable prospectus delivery requirements of the Securities Act
and may be
EX-62
subject
to certain statutory liabilities of, including but not limited to, Sections 11,
12 and 17 of the Securities Act and Rule 10b-5 under the Securities
Exchange Act of 1934, as amended, or the Exchange Act.
Each
selling stockholder has informed the Company that it is not a registered
broker-dealer and does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the Common
Stock. Upon the Company being notified in writing by a selling
stockholder that any material arrangement has been entered into with a
broker-dealer for the sale of Common Stock through a block trade, special
offering, exchange distribution or secondary distribution or a purchase by a
broker or dealer, a supplement to this prospectus will be filed, if required,
pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of
each such selling stockholder and of the participating broker-dealer(s), (ii)
the number of shares involved, (iii) the price at which such the Common Stock
was sold, (iv) the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not
conduct any investigation to verify the information set out or incorporated by
reference in this prospectus, and (vi) other facts material to the
transaction. In no event shall any broker-dealer receive fees,
commissions and markups, which, in the aggregate, would exceed eight percent
(8%).
Under the
securities laws of some states, the Common Stock may be sold in such states only
through registered or licensed brokers or dealers. In addition, in
some states the Common Stock may not be sold unless such shares have been
registered or qualified for sale in such state or an exemption from registration
or qualification is available and is complied with.
There can
be no assurance that any selling stockholder will sell any or all of the Common
Stock registered pursuant to the shelf registration statement, of which this
prospectus forms a part.
Each
selling stockholder and any other person participating in such distribution will
be subject to applicable provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, including, without
limitation, to the extent applicable, Regulation M of the Exchange Act, which
may limit the timing of purchases and sales of any of the Common Stock by the
selling stockholder and any other participating person. To the extent
applicable, Regulation M may also restrict the ability of any person engaged in
the distribution of the Common Stock to engage in market-making activities with
respect to the Common Stock. All of the foregoing may affect the
marketability of the Common Stock and the ability of any person or entity to
engage in market-making activities with respect to the Common
Stock.
We will
pay all expenses of the registration of the Common Stock pursuant to the
registration rights agreement, including, without limitation, Securities and
Exchange Commission filing fees and expenses of compliance with state securities
or “blue sky” laws; provided, however, that each selling
stockholder will pay all underwriting discounts and selling commissions, if any
and any related legal expenses incurred by it. We will indemnify the
selling stockholders against certain liabilities, including some liabilities
under the Securities Act, in accordance with the registration rights agreement,
or the selling stockholders will be entitled to contribution. We may
be indemnified by the selling stockholders against civil liabilities, including
liabilities under the Securities Act, that may arise from any written
information furnished to us by the selling stockholders specifically for use in
this prospectus, in accordance with the related registration rights agreements,
or we may be entitled to contribution.
EX-63
