EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of August ___, 2005, among Euroseas Ltd., a Xxxxxxxx Islands
corporation (the "Company"), and the purchasers signatory hereto (each such
purchaser is a "Purchaser" and collectively, 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:
DEFINITIONS. CAPITALIZED TERMS USED AND NOT OTHERWISE DEFINED HEREIN
THAT ARE DEFINED IN THE PURCHASE AGREEMENT 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" shall have the meaning set forth in Section 6(d).
"Effectiveness Date" means, with respect to the Registration
Statement required to be filed hereunder, the 130th calendar day
following the date hereof; provided, however, in the event the Company
is notified by the Commission that the Registration Statement will not
be reviewed or is no longer subject to further review and comments, the
Effectiveness Date as to the Registration Statement shall be the fifth
Trading Day following the date on which the Company is so notified if
such date precedes the date required above.
"Effectiveness Period" shall have the meaning set forth in
Section 2(a).
"Event" shall have the meaning set forth in Section 2(b).
"Event Date" shall have the meaning set forth in Section 2(b).
"Filing Date" means, with respect to the Registration
Statement required hereunder, the 60th calendar day following the date
hereof.
"Holder" or "Holders" means the holder or holders, as the case
may be, from time to time of Registrable Securities.
"Indemnified Party" shall have the meaning set forth in
Section 5(c).
"Indemnifying Party" shall have the meaning set forth in
Section 5(c).
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"Losses" shall have the meaning set forth in Section 5(a).
"Plan of Distribution" shall have the meaning set forth in
Section 2(a).
"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 or deemed to be incorporated by reference in such Prospectus.
"Registrable Securities" means all of (i) the Shares, (ii) the
Warrant Shares issuable and (iii) any shares of Common Stock issued or
issuable upon any stock split, dividend or other distribution,
recapitalization or similar event with respect to the foregoing.
"Registration Statement" means the registration statement
required to be filed hereunder, including 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 or deemed to be incorporated by
reference in such registration statement.
"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 purpose and effect as such
Rule.
"Rule 424" means Rule 424 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 purpose and effect as such
Rule.
"Selling Shareholder Questionnaire" shall have the meaning set
forth in Section 3(a).
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REGISTRATION.
ON OR PRIOR TO THE FILING DATE, THE COMPANY SHALL PREPARE AND
FILE WITH THE COMMISSION THE REGISTRATION STATEMENT COVERING THE RESALE
OF ALL OF THE REGISTRABLE SECURITIES ON SUCH FILING DATE FOR AN
OFFERING TO BE MADE ON A CONTINUOUS BASIS PURSUANT TO RULE 415. THE
REGISTRATION STATEMENT SHALL BE ON FORM F-1 (EXCEPT IF THE COMPANY IS
NOT THEN ELIGIBLE TO REGISTER FOR RESALE THE REGISTRABLE SECURITIES ON
FORM F-1, IN WHICH CASE SUCH REGISTRATION SHALL BE ON ANOTHER
APPROPRIATE FORM IN ACCORDANCE HEREWITH) AND SHALL CONTAIN (UNLESS
OTHERWISE DIRECTED BY THE HOLDERS) SUBSTANTIALLY THE "PLAN OF
DISTRIBUTION" ATTACHED HERETO AS ANNEX A. SUBJECT TO THE TERMS OF THIS
AGREEMENT, THE COMPANY SHALL USE ITS BEST EFFORTS TO CAUSE THE
REGISTRATION STATEMENT TO BE DECLARED EFFECTIVE UNDER THE SECURITIES
ACT AS PROMPTLY AS POSSIBLE AFTER THE FILING THEREOF, BUT IN ANY EVENT
PRIOR TO THE EFFECTIVENESS DATE, AND SHALL USE ITS BEST EFFORTS TO KEEP
THE REGISTRATION STATEMENT CONTINUOUSLY EFFECTIVE UNDER THE SECURITIES
ACT UNTIL THE EARLIER OF (I) TWO YEARS FOLLOWING THE EFFECTIVENESS DATE
AND (II) SUCH TIME AS ALL REGISTRABLE SECURITIES COVERED BY THE
REGISTRATION STATEMENT HAVE BEEN SOLD OR MAY BE SOLD WITHOUT VOLUME
RESTRICTIONS PURSUANT TO RULE 144(K) AS DETERMINED BY THE COUNSEL TO
THE COMPANY PURSUANT TO A WRITTEN OPINION LETTER TO SUCH EFFECT,
ADDRESSED AND ACCEPTABLE TO THE COMPANY'S TRANSFER AGENT AND THE
AFFECTED HOLDERS (THE "EFFECTIVENESS PERIOD"). THE COMPANY SHALL
IMMEDIATELY NOTIFY THE HOLDERS VIA FACSIMILE OR EMAIL OF THE
EFFECTIVENESS OF THE REGISTRATION STATEMENT ON THE SAME TRADING DAY
THAT THE COMPANY CONFIRMS EFFECTIVENESS WITH THE COMMISSION. THE
COMPANY SHALL, BY 9:30 AM EASTERN TIME ON THE TRADING DAY AFTER THE
EFFECTIVE DATE (AS DEFINED IN THE PURCHASE AGREEMENT), FILE A FORM
424(B)(5) WITH THE COMMISSION. FAILURE TO SO NOTIFY THE HOLDER WITHIN 1
TRADING DAY OF SUCH NOTIFICATION SHALL BE DEEMED AN EVENT UNDER SECTION
2(B).
IF: (I) THE REGISTRATION STATEMENT IS NOT FILED ON OR PRIOR TO
THE FILING DATE (IF THE COMPANY FILES THE REGISTRATION STATEMENT
WITHOUT AFFORDING THE HOLDERS THE OPPORTUNITY TO REVIEW AND COMMENT ON
THE SAME AS REQUIRED BY SECTION 3(A), THE COMPANY SHALL NOT BE DEEMED
TO HAVE SATISFIED THIS CLAUSE (I)), OR (II) THE COMPANY FAILS TO FILE
WITH THE COMMISSION A REQUEST FOR ACCELERATION IN ACCORDANCE WITH RULE
461 PROMULGATED UNDER THE SECURITIES ACT, WITHIN FIVE TRADING DAYS OF
THE DATE THAT THE COMPANY IS NOTIFIED (ORALLY OR IN WRITING, WHICHEVER
IS EARLIER) BY THE COMMISSION THAT THE REGISTRATION STATEMENT WILL NOT
BE "REVIEWED," OR NOT SUBJECT TO FURTHER REVIEW, OR (III) PRIOR TO THE
EFFECTIVENESS DATE, THE COMPANY FAILS TO FILE A PRE-EFFECTIVE AMENDMENT
AND OTHERWISE RESPOND IN WRITING TO COMMENTS MADE BY THE COMMISSION IN
RESPECT OF THE REGISTRATION STATEMENT WITHIN 30 CALENDAR DAYS AFTER THE
RECEIPT OF COMMENTS BY OR NOTICE FROM THE COMMISSION THAT SUCH
AMENDMENT IS REQUIRED IN ORDER FOR THE REGISTRATION STATEMENT TO BE
DECLARED EFFECTIVE, OR (IV) THE REGISTRATION STATEMENT FILED OR
REQUIRED TO BE FILED HEREUNDER IS NOT DECLARED EFFECTIVE BY THE
COMMISSION BY THE EFFECTIVENESS DATE, OR (V) AFTER THE EFFECTIVENESS
DATE, THE REGISTRATION STATEMENT CEASES FOR ANY REASON TO REMAIN
CONTINUOUSLY EFFECTIVE AS TO ALL REGISTRABLE SECURITIES FOR WHICH IT IS
REQUIRED TO BE EFFECTIVE, OR THE HOLDERS ARE NOT PERMITTED TO UTILIZE
THE PROSPECTUS THEREIN TO RESELL SUCH REGISTRABLE SECURITIES FOR 20
CONSECUTIVE CALENDAR DAYS BUT NO MORE THAN AN AGGREGATE OF 30 CALENDAR
DAYS DURING ANY 12-MONTH PERIOD (WHICH NEED NOT BE CONSECUTIVE TRADING
DAYS) (ANY SUCH FAILURE OR BREACH BEING REFERRED TO AS AN "EVENT", AND
FOR PURPOSES OF CLAUSE (I) OR (IV) THE DATE ON WHICH SUCH EVENT OCCURS,
OR FOR PURPOSES OF CLAUSE (II) THE DATE ON WHICH SUCH FIVE TRADING DAY
PERIOD IS EXCEEDED, OR FOR PURPOSES OF CLAUSE (III) THE DATE WHICH SUCH
30 CALENDAR DAY PERIOD IS EXCEEDED, OR FOR PURPOSES OF CLAUSE (V) THE
DATE ON WHICH SUCH 20 OR 30 CALENDAR DAY PERIOD, AS APPLICABLE, IS
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EXCEEDED BEING REFERRED TO AS "EVENT DATE"), THEN IN ADDITION TO ANY
OTHER RIGHTS THE HOLDERS MAY HAVE HEREUNDER OR UNDER APPLICABLE LAW, ON
EACH SUCH EVENT DATE AND ON EACH MONTHLY ANNIVERSARY OF EACH SUCH EVENT
DATE (IF THE APPLICABLE EVENT SHALL NOT HAVE BEEN CURED BY SUCH DATE)
UNTIL THE APPLICABLE EVENT IS CURED, THE COMPANY SHALL PAY TO EACH
HOLDER AN AMOUNT IN CASH, AS PARTIAL LIQUIDATED DAMAGES AND NOT AS A
PENALTY, EQUAL TO 1.5% OF THE AGGREGATE PURCHASE PRICE PAID BY SUCH
HOLDER PURSUANT TO THE PURCHASE AGREEMENT FOR ANY REGISTRABLE
SECURITIES THEN HELD BY SUCH HOLDER. IF THE COMPANY FAILS TO PAY ANY
PARTIAL LIQUIDATED DAMAGES PURSUANT TO THIS SECTION IN FULL WITHIN
SEVEN DAYS AFTER THE DATE PAYABLE, THE COMPANY WILL PAY INTEREST
THEREON AT A RATE OF 18% PER ANNUM (OR SUCH LESSER MAXIMUM AMOUNT THAT
IS PERMITTED TO BE PAID BY APPLICABLE LAW) TO THE HOLDER, ACCRUING
DAILY FROM THE DATE SUCH PARTIAL LIQUIDATED DAMAGES ARE DUE UNTIL SUCH
AMOUNTS, PLUS ALL SUCH INTEREST THEREON, ARE PAID IN FULL. THE PARTIAL
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.
REGISTRATION PROCEDURES
------------------------
In connection with the Company's registration obligations hereunder,
the Company shall:
NOT LESS THAN FIVE TRADING 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
OR DEEMED TO BE INCORPORATED THEREIN BY REFERENCE), THE COMPANY SHALL,
(I) FURNISH TO EACH HOLDER COPIES OF ALL SUCH DOCUMENTS PROPOSED TO BE
FILED, WHICH DOCUMENTS (OTHER THAN THOSE INCORPORATED OR DEEMED TO BE
INCORPORATED BY REFERENCE) WILL BE SUBJECT TO THE REVIEW OF SUCH
HOLDERS, AND (II) CAUSE ITS OFFICERS AND DIRECTORS, COUNSEL AND
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS TO RESPOND TO SUCH INQUIRIES
AS SHALL BE NECESSARY, IN THE REASONABLE OPINION OF RESPECTIVE COUNSEL
TO CONDUCT A REASONABLE INVESTIGATION WITHIN THE MEANING OF THE
SECURITIES ACT. THE COMPANY SHALL NOT FILE THE REGISTRATION STATEMENT
OR ANY SUCH PROSPECTUS OR ANY AMENDMENTS OR SUPPLEMENTS THERETO TO
WHICH THE HOLDERS OF A MAJORITY OF THE REGISTRABLE SECURITIES SHALL
REASONABLY OBJECT IN GOOD FAITH, PROVIDED THAT, THE COMPANY IS NOTIFIED
OF SUCH OBJECTION IN WRITING NO LATER THAN 5 TRADING DAYS AFTER THE
HOLDERS HAVE BEEN SO FURNISHED COPIES OF SUCH DOCUMENTS. EACH HOLDER
AGREES TO FURNISH TO THE COMPANY A COMPLETED QUESTIONNAIRE IN THE FORM
ATTACHED TO THIS AGREEMENT AS ANNEX B (A "SELLING SHAREHOLDER
QUESTIONNAIRE") NOT LESS THAN TWO TRADING DAYS PRIOR TO THE FILING DATE
OR BY THE END OF THE FOURTH TRADING DAY FOLLOWING THE DATE ON WHICH
SUCH HOLDER RECEIVES DRAFT MATERIALS IN ACCORDANCE WITH THIS SECTION.
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(I) PREPARE AND FILE WITH THE COMMISSION SUCH AMENDMENTS,
INCLUDING POST-EFFECTIVE AMENDMENTS, TO THE REGISTRATION STATEMENT AND
THE PROSPECTUS OR, IF NECESSARY, A NEW REGISTRATION STATEMENT, USED IN
CONNECTION THEREWITH AS MAY BE NECESSARY TO KEEP THE REGISTRATION
STATEMENT CONTINUOUSLY EFFECTIVE AS TO THE APPLICABLE REGISTRABLE
SECURITIES FOR THE EFFECTIVENESS PERIOD AND PREPARE AND FILE WITH THE
COMMISSION SUCH ADDITIONAL REGISTRATION STATEMENTS IN ORDER TO REGISTER
FOR RESALE UNDER THE SECURITIES ACT ALL OF THE REGISTRABLE SECURITIES;
(II) CAUSE THE RELATED PROSPECTUS TO BE AMENDED OR SUPPLEMENTED BY ANY
REQUIRED PROSPECTUS SUPPLEMENT (SUBJECT TO THE TERMS OF THIS
AGREEMENT), AND AS SO SUPPLEMENTED OR AMENDED TO BE FILED PURSUANT TO
RULE 424; (III) RESPOND AS PROMPTLY AS REASONABLY POSSIBLE TO ANY
COMMENTS RECEIVED FROM THE COMMISSION WITH RESPECT TO THE REGISTRATION
STATEMENT OR ANY AMENDMENT THERETO AND AS PROMPTLY AS REASONABLY
POSSIBLE PROVIDE THE HOLDERS TRUE AND COMPLETE COPIES OF ALL
CORRESPONDENCE FROM AND TO THE COMMISSION RELATING TO THE REGISTRATION
STATEMENT; 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 A REGISTRATION
STATEMENT DURING THE APPLICABLE PERIOD IN ACCORDANCE (SUBJECT TO THE
TERMS OF THIS AGREEMENT) WITH THE INTENDED METHODS OF DISPOSITION BY
THE HOLDERS THEREOF SET FORTH IN SUCH REGISTRATION STATEMENT AS SO
AMENDED OR IN SUCH PROSPECTUS AS SO SUPPLEMENTED.
[RESERVED].
NOTIFY THE HOLDERS OF REGISTRABLE SECURITIES TO BE SOLD (WHICH
NOTICE SHALL, PURSUANT TO CLAUSES (II) THROUGH (VI) HEREOF, BE
ACCOMPANIED BY AN INSTRUCTION TO SUSPEND THE USE OF THE PROSPECTUS
UNTIL THE REQUISITE CHANGES HAVE BEEN MADE) AS PROMPTLY AS REASONABLY
POSSIBLE (AND, IN THE CASE OF (I)(A) BELOW, NOT LESS THAN FIVE TRADING
DAYS PRIOR TO SUCH FILING) AND (IF REQUESTED BY ANY SUCH PERSON)
CONFIRM SUCH NOTICE IN WRITING NO LATER THAN ONE TRADING 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
WILL BE A "REVIEW" OF THE REGISTRATION STATEMENT AND WHENEVER THE
COMMISSION COMMENTS IN WRITING ON THE REGISTRATION STATEMENT (THE
COMPANY SHALL PROVIDE TRUE AND COMPLETE COPIES THEREOF AND ALL WRITTEN
RESPONSES THERETO TO EACH OF THE HOLDERS); 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
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SUPPLEMENTS TO THE REGISTRATION STATEMENT OR PROSPECTUS OR FOR
ADDITIONAL INFORMATION; (III) OF THE ISSUANCE BY THE COMMISSION OR ANY
OTHER FEDERAL OR STATE GOVERNMENTAL AUTHORITY 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 OR
PASSAGE OF TIME THAT MAKES THE FINANCIAL STATEMENTS INCLUDED IN THE
REGISTRATION STATEMENT INELIGIBLE FOR INCLUSION THEREIN OR 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 OCCURRENCE OR
EXISTENCE OF ANY PENDING CORPORATE DEVELOPMENT WITH RESPECT TO THE
COMPANY THAT THE COMPANY BELIEVES IN GOOD FAITH MAY BE MATERIAL AND
THAT, IN THE GOOD FAITH DETERMINATION OF THE COMPANY, MAKES IT NOT IN
THE BEST INTEREST OF THE COMPANY TO ALLOW CONTINUED AVAILABILITY OF THE
REGISTRATION STATEMENT OR PROSPECTUS; PROVIDED THAT ANY AND ALL OF SUCH
INFORMATION SHALL REMAIN CONFIDENTIAL TO EACH HOLDER UNTIL SUCH
INFORMATION OTHERWISE BECOMES PUBLIC, UNLESS DISCLOSURE BY A HOLDER IS
REQUIRED BY LAW; PROVIDED, FURTHER, NOTWITHSTANDING EACH HOLDER'S
AGREEMENT TO KEEP SUCH INFORMATION CONFIDENTIAL, THE HOLDERS MAKE NO
ACKNOWLEDGEMENT THAT ANY SUCH INFORMATION IS MATERIAL, NON-PUBLIC
INFORMATION.
USE ITS BEST 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.
FURNISH TO EACH HOLDER, WITHOUT CHARGE, AT LEAST ONE CONFORMED
COPY OF EACH SUCH REGISTRATION STATEMENT AND EACH AMENDMENT THERETO,
INCLUDING FINANCIAL STATEMENTS AND SCHEDULES, ALL DOCUMENTS
INCORPORATED OR DEEMED TO BE INCORPORATED THEREIN BY REFERENCE TO THE
EXTENT REQUESTED BY SUCH PERSON, 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.
PROMPTLY DELIVER TO EACH HOLDER, WITHOUT CHARGE, AS MANY
COPIES OF THE PROSPECTUS OR PROSPECTUSES (INCLUDING EACH FORM OF
PROSPECTUS) AND EACH AMENDMENT OR SUPPLEMENT THERETO AS SUCH PERSONS
MAY REASONABLY REQUEST IN CONNECTION WITH RESALES BY THE HOLDER OF
REGISTRABLE SECURITIES. SUBJECT TO THE TERMS OF THIS AGREEMENT, THE
COMPANY HEREBY CONSENTS TO THE USE OF SUCH PROSPECTUS AND EACH
AMENDMENT OR SUPPLEMENT THERETO BY EACH OF THE SELLING HOLDERS IN
CONNECTION WITH THE OFFERING AND SALE OF THE REGISTRABLE SECURITIES
COVERED BY SUCH PROSPECTUS AND ANY AMENDMENT OR SUPPLEMENT THERETO,
EXCEPT AFTER THE GIVING OF ANY NOTICE PURSUANT TO SECTION 3(D).
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IF NASDR RULE 2710 REQUIRES ANY BROKER-DEALER TO MAKE A FILING
PRIOR TO EXECUTING A SALE BY A HOLDER, THE COMPANY SHALL (I) MAKE AN
ISSUER FILING WITH THE NASDR, INC. CORPORATE FINANCING DEPARTMENT
PURSUANT TO NASDR RULE 2710(B)(10)(A)(I), (II) RESPOND WITHIN FIVE
TRADING DAYS TO ANY COMMENTS RECEIVED FROM NASDR IN CONNECTION
THEREWITH AND (III) PAY THE FILING FEE REQUIRED IN CONNECTION
THEREWITH.
PRIOR TO ANY RESALE OF REGISTRABLE SECURITIES BY A HOLDER, USE
ITS COMMERCIALLY REASONABLE EFFORTS TO REGISTER OR QUALIFY OR COOPERATE
WITH THE SELLING HOLDERS IN CONNECTION WITH THE REGISTRATION OR
QUALIFICATION (OR EXEMPTION FROM THE REGISTRATION OR QUALIFICATION) OF
SUCH REGISTRABLE SECURITIES FOR THE RESALE BY THE HOLDER UNDER THE
SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTIONS WITHIN THE UNITED
STATES OF AMERICA AS ANY HOLDER REASONABLY REQUESTS IN WRITING, TO KEEP
EACH REGISTRATION OR QUALIFICATION (OR EXEMPTION THEREFROM) EFFECTIVE
DURING THE EFFECTIVENESS PERIOD AND TO DO ANY AND ALL OTHER ACTS OR
THINGS REASONABLY NECESSARY TO ENABLE THE DISPOSITION IN SUCH
JURISDICTIONS OF THE REGISTRABLE SECURITIES COVERED BY THE REGISTRATION
STATEMENT; PROVIDED, THAT THE COMPANY SHALL NOT BE REQUIRED TO QUALIFY
GENERALLY TO DO BUSINESS IN ANY JURISDICTION WHERE IT IS NOT THEN SO
QUALIFIED, SUBJECT THE COMPANY TO ANY MATERIAL TAX IN ANY SUCH
JURISDICTION WHERE IT IS NOT THEN SO SUBJECT OR FILE A GENERAL CONSENT
TO SERVICE OF PROCESS IN ANY SUCH JURISDICTION.
IF REQUESTED BY THE HOLDERS, COOPERATE WITH THE HOLDERS TO
FACILITATE THE TIMELY PREPARATION AND DELIVERY OF CERTIFICATES
REPRESENTING REGISTRABLE SECURITIES TO BE DELIVERED TO A TRANSFEREE
PURSUANT TO THE REGISTRATION STATEMENT, WHICH CERTIFICATES SHALL BE
FREE, TO THE EXTENT PERMITTED BY 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 HOLDERS MAY
REQUEST.
UPON THE OCCURRENCE OF ANY EVENT CONTEMPLATED BY THIS SECTION
3, AS PROMPTLY AS REASONABLY POSSIBLE UNDER THE CIRCUMSTANCES TAKING
INTO ACCOUNT THE COMPANY'S GOOD FAITH ASSESSMENT OF ANY ADVERSE
CONSEQUENCES TO THE COMPANY AND ITS STOCKHOLDERS OF THE PREMATURE
DISCLOSURE OF SUCH EVENT, 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
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TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS THEREIN, IN
LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
IF THE COMPANY NOTIFIES THE HOLDERS IN ACCORDANCE WITH CLAUSES (II)
THROUGH (VI) OF SECTION 3(D) ABOVE TO SUSPEND THE USE OF ANY PROSPECTUS
UNTIL THE REQUISITE CHANGES TO SUCH PROSPECTUS HAVE BEEN MADE, THEN THE
HOLDERS SHALL SUSPEND USE OF SUCH PROSPECTUS. THE COMPANY WILL USE ITS
BEST EFFORTS TO ENSURE THAT THE USE OF THE PROSPECTUS MAY BE RESUMED AS
PROMPTLY AS IS PRACTICABLE. THE COMPANY SHALL BE ENTITLED TO EXERCISE
ITS RIGHT UNDER THIS SECTION 3(K) TO SUSPEND THE AVAILABILITY OF THE
REGISTRATION STATEMENT AND PROSPECTUS, SUBJECT TO THE PAYMENT OF
PARTIAL LIQUIDATED DAMAGES PURSUANT TO SECTION 2(B), FOR A PERIOD NOT
TO EXCEED 60 DAYS (WHICH NEED NOT BE CONSECUTIVE DAYS) IN ANY 12 MONTH
PERIOD.
COMPLY WITH ALL APPLICABLE RULES AND REGULATIONS OF THE
COMMISSION.
THE COMPANY MAY REQUIRE EACH SELLING HOLDER TO FURNISH TO THE
COMPANY A CERTIFIED STATEMENT AS TO THE NUMBER OF SHARES OF COMMON
STOCK BENEFICIALLY OWNED BY SUCH HOLDER AND, IF REQUIRED BY THE
COMMISSION, THE PERSON THEREOF THAT HAS VOTING AND DISPOSITIVE CONTROL
OVER SUCH SHARES. DURING ANY PERIODS THAT THE COMPANY IS UNABLE TO MEET
ITS OBLIGATIONS HEREUNDER WITH RESPECT TO THE REGISTRATION OF THE
REGISTRABLE SECURITIES SOLELY BECAUSE ANY HOLDER FAILS TO FURNISH SUCH
INFORMATION WITHIN THREE TRADING DAYS OF THE COMPANY'S REQUEST, ANY
LIQUIDATED DAMAGES THAT ARE ACCRUING PURSUANT TO SECTION 2(B) HEREOF AT
SUCH TIME AS TO SUCH HOLDER ONLY SHALL BE TOLLED AND ANY EVENT THAT MAY
OTHERWISE OCCUR SOLELY BECAUSE OF SUCH DELAY SHALL BE SUSPENDED AS TO
SUCH HOLDER ONLY, UNTIL SUCH INFORMATION IS DELIVERED TO THE COMPANY.
REGISTRATION EXPENSES. ALL FEES AND EXPENSES INCIDENT TO THE
PERFORMANCE OF OR COMPLIANCE WITH THIS AGREEMENT BY THE COMPANY SHALL BE BORNE
BY THE COMPANY 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, FEES AND EXPENSES (A) WITH RESPECT TO FILINGS
REQUIRED TO BE MADE WITH THE TRADING MARKET ON WHICH THE COMMON STOCK IS THEN
LISTED FOR TRADING, (B) IN COMPLIANCE WITH APPLICABLE STATE SECURITIES OR BLUE
SKY LAWS REASONABLY AGREED TO BY THE COMPANY IN WRITING (INCLUDING, WITHOUT
LIMITATION, FEES AND DISBURSEMENTS OF COUNSEL FOR THE COMPANY IN CONNECTION WITH
BLUE SKY QUALIFICATIONS OR EXEMPTIONS OF THE REGISTRABLE SECURITIES AND
DETERMINATION OF THE ELIGIBILITY OF THE REGISTRABLE SECURITIES FOR INVESTMENT
UNDER THE LAWS OF SUCH JURISDICTIONS AS REQUESTED BY THE HOLDERS) AND (C) IF NOT
PREVIOUSLY PAID BY THE COMPANY IN CONNECTION WITH AN ISSUER FILING, WITH RESPECT
TO ANY FILING THAT MAY BE REQUIRED TO BE MADE BY ANY BROKER THROUGH WHICH A
HOLDER INTENDS TO MAKE SALES OF REGISTRABLE SECURITIES WITH NASD REGULATION,
INC. PURSUANT TO THE NASD RULE 2710, SO LONG AS THE BROKER IS RECEIVING NO MORE
THAN A CUSTOMARY BROKERAGE COMMISSION IN CONNECTION WITH SUCH SALE, (II)
PRINTING EXPENSES (INCLUDING, WITHOUT LIMITATION, EXPENSES OF PRINTING
CERTIFICATES FOR REGISTRABLE SECURITIES AND OF PRINTING PROSPECTUSES IF THE
PRINTING OF PROSPECTUSES IS REASONABLY REQUESTED BY THE HOLDERS OF A MAJORITY OF
THE REGISTRABLE SECURITIES INCLUDED IN THE REGISTRATION STATEMENT), (III)
MESSENGER, TELEPHONE AND DELIVERY EXPENSES, (IV) FEES AND DISBURSEMENTS OF
COUNSEL FOR THE COMPANY, (V) SECURITIES ACT LIABILITY INSURANCE, IF THE COMPANY
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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. IN NO EVENT SHALL THE COMPANY BE
RESPONSIBLE FOR ANY BROKER OR SIMILAR COMMISSIONS OR, EXCEPT TO THE EXTENT
PROVIDED FOR IN THE TRANSACTION DOCUMENTS, ANY LEGAL FEES OR OTHER COSTS OF THE
HOLDERS.
INDEMNIFICATION
---------------
INDEMNIFICATION BY THE COMPANY. THE COMPANY SHALL,
NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT, INDEMNIFY AND HOLD
HARMLESS EACH HOLDER, THE OFFICERS, DIRECTORS, MANAGERS, MEMBERS,
AGENTS, BROKERS (INCLUDING BROKERS WHO OFFER AND SELL 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, MANAGERS, MEMBERS,
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 ATTORNEYS' FEES) AND EXPENSES (COLLECTIVELY,
"LOSSES"), AS INCURRED, ARISING OUT OF OR RELATING TO 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, EXCEPT TO THE EXTENT, BUT ONLY TO THE
EXTENT, THAT (I) 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 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 (IT BEING UNDERSTOOD THAT THE
HOLDER HAS APPROVED ANNEX A HERETO FOR THIS PURPOSE) OR (II) IN THE
CASE OF AN OCCURRENCE OF AN EVENT OF THE TYPE SPECIFIED IN SECTION
134
3(D)(II)-(VI), 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 THE ADVICE CONTEMPLATED IN SECTION 6(D). 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.
INDEMNIFICATION BY HOLDERS. 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, TO THE
EXTENT, BUT ONLY TO THE EXTENT, ARISING OUT OF OR BASED SOLELY UPON:
(X) SUCH HOLDER'S FAILURE TO COMPLY WITH THE PROSPECTUS DELIVERY
REQUIREMENTS OF THE SECURITIES ACT OR (Y) 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 THEREIN OR NECESSARY TO MAKE THE STATEMENTS
THEREIN NOT MISLEADING (I) 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 OR (II) TO
THE EXTENT, BUT ONLY TO THE EXTENT, (1) 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 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 (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 (2) IN THE CASE OF AN OCCURRENCE OF
AN EVENT OF THE TYPE SPECIFIED IN SECTION 3(D)(II)-(VI), OF 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 THE ADVICE
CONTEMPLATED IN SECTION 6(D). 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.
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 SHALL
PROMPTLY NOTIFY THE PERSON FROM WHOM INDEMNITY IS SOUGHT (THE
"INDEMNIFYING PARTY") IN WRITING, AND THE INDEMNIFYING PARTY SHALL HAVE
THE RIGHT TO 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, 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 PREJUDICED THE INDEMNIFYING PARTY.
135
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: (1) the
Indemnifying Party has agreed in writing to pay such fees and expenses;
(2) 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; or (3)
the named parties to any such Proceeding (including any impleaded
parties) include both such Indemnified Party and the Indemnifying
Party, and legal counsel for such Indemnified Party shall reasonably
believe that a material 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 the
reasonable fees and expenses of one separate counsel shall be at the
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,
conditioned or delayed. No Indemnifying Party shall, without the prior
written consent of the 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.
Subject to the terms of this Agreement, all reasonable 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 Trading Days of written notice thereof to the Indemnifying
Party; provided, that the Indemnified Party shall promptly reimburse
the Indemnifying Party for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is not
entitled to indemnification hereunder, determined based upon the
relative faults of the parties.
136
CONTRIBUTION. IF THE INDEMNIFICATION UNDER SECTION 5(A) OR
5(B) IS UNAVAILABLE TO AN INDEMNIFIED PARTY OR INSUFFICIENT TO HOLD AN
INDEMNIFIED PARTY HARMLESS FOR ANY LOSSES, THEN EACH INDEMNIFYING 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, 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 THIS
AGREEMENT, 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.
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. Notwithstanding the provisions of this
Section 5(d), no Holder shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the proceeds
actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages
that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission,
except in the case of fraud by such Holder.
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.
MISCELLANEOUS
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.
137
NO PIGGYBACK ON REGISTRATIONS. EXCEPT AS SET FORTH ON SCHEDULE
6(B) ATTACHED HERETO, 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 THE REGISTRATION STATEMENT OTHER
THAN THE REGISTRABLE SECURITIES. OTHER THAN THE HOLDERS, NO PERSON HAS
ANY RIGHT TO CAUSE THE COMPANY TO EFFECT THE REGISTRATION UNDER THE
SECURITIES ACT OF ANY SECURITIES OF THE COMPANY. THE COMPANY SHALL NOT
FILE ANY OTHER REGISTRATION STATEMENTS UNTIL THE REGISTRATION STATEMENT
REQUIRED HEREUNDER IS DECLARED EFFECTIVE BY THE COMMISSION, PROVIDED
THAT THIS SECTION 6(B) SHALL NOT PROHIBIT THE COMPANY FROM FILING ANY
REGISTRATION STATEMENT ON FORM F-1 OR F-4 IN CONNECTION WITH THE MERGER
BETWEEN THE COMPANY AND SHELLCO OR AMENDMENTS TO REGISTRATION
STATEMENTS ALREADY FILED.
COMPLIANCE. EACH HOLDER COVENANTS AND AGREES THAT IT WILL
COMPLY WITH THE PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT
AS APPLICABLE TO IT IN CONNECTION WITH SALES OF REGISTRABLE SECURITIES
PURSUANT TO THE REGISTRATION STATEMENT.
DISCONTINUED DISPOSITION. 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(D), 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 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. THE COMPANY WILL USE ITS BEST EFFORTS TO ENSURE THAT THE USE
OF THE PROSPECTUS MAY BE RESUMED AS PROMPTLY AS IT PRACTICABLE. THE
COMPANY AGREES AND ACKNOWLEDGES THAT ANY PERIODS DURING WHICH THE
HOLDER IS REQUIRED TO DISCONTINUE THE DISPOSITION OF THE REGISTRABLE
SECURITIES HEREUNDER SHALL BE SUBJECT TO THE PROVISIONS OF SECTION
2(B).
PIGGY-BACK REGISTRATIONS. IF AT ANY TIME DURING THE
EFFECTIVENESS PERIOD THERE IS NOT AN EFFECTIVE REGISTRATION STATEMENT
COVERING ALL OF THE REGISTRABLE SECURITIES AND 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 F-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 THE STOCK
OPTION OR OTHER EMPLOYEE BENEFIT PLANS, THEN THE COMPANY SHALL SEND TO
EACH HOLDER A WRITTEN NOTICE OF SUCH DETERMINATION AND, IF WITHIN
FIFTEEN DAYS AFTER THE DATE OF SUCH NOTICE, ANY SUCH HOLDER SHALL SO
REQUEST IN WRITING, 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(E) THAT ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144(K)
PROMULGATED UNDER THE SECURITIES ACT OR THAT ARE THE SUBJECT OF A THEN
EFFECTIVE REGISTRATION STATEMENT.
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 EACH HOLDER OF THE THEN OUTSTANDING
REGISTRABLE SECURITIES. 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
138
DIRECTLY OR INDIRECTLY AFFECT THE RIGHTS OF OTHER HOLDERS MAY BE GIVEN
BY HOLDERS OF ALL OF THE REGISTRABLE SECURITIES 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.
NOTICES. ANY AND ALL NOTICES OR OTHER COMMUNICATIONS OR
DELIVERIES REQUIRED OR PERMITTED TO BE PROVIDED HEREUNDER SHALL BE
DELIVERED AS SET FORTH IN THE PURCHASE AGREEMENT.
SUCCESSORS AND ASSIGNS. THIS AGREEMENT SHALL INURE TO THE
BENEFIT OF AND BE BINDING UPON THE SUCCESSORS AND PERMITTED ASSIGNS OF
EACH OF THE PARTIES AND SHALL INURE TO THE BENEFIT OF EACH HOLDER. THE
COMPANY MAY NOT ASSIGN ITS RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE
PRIOR WRITTEN CONSENT OF ALL OF THE HOLDERS OF THE THEN-OUTSTANDING
REGISTRABLE SECURITIES. EACH HOLDER MAY ASSIGN THEIR RESPECTIVE RIGHTS
HEREUNDER IN THE MANNER AND TO THE PERSONS AS PERMITTED UNDER THE
PURCHASE AGREEMENT.
NO INCONSISTENT AGREEMENTS. NEITHER THE COMPANY NOR ANY OF ITS
SUBSIDIARIES HAS ENTERED, 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 WOULD
HAVE THE EFFECT OF IMPAIRING THE RIGHTS GRANTED TO THE HOLDERS IN THIS
AGREEMENT OR OTHERWISE CONFLICTS WITH THE PROVISIONS HEREOF. EXCEPT AS
SET FORTH ON SCHEDULE 6(I), 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
THAT HAVE NOT BEEN SATISFIED IN FULL.
EXECUTION AND COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN
ANY NUMBER OF 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. IN THE EVENT THAT ANY SIGNATURE
IS DELIVERED BY FACSIMILE TRANSMISSION, SUCH SIGNATURE SHALL CREATE A
VALID BINDING OBLIGATION OF THE PARTY EXECUTING (OR ON WHOSE BEHALF
SUCH SIGNATURE IS EXECUTED) THE SAME WITH THE SAME FORCE AND EFFECT AS
IF SUCH FACSIMILE SIGNATURE WERE THE ORIGINAL THEREOF.
GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE
DETERMINED WITH THE PROVISIONS OF THE PURCHASE AGREEMENT.
CUMULATIVE REMEDIES. THE REMEDIES PROVIDED HEREIN ARE
CUMULATIVE AND NOT EXCLUSIVE OF ANY REMEDIES PROVIDED BY LAW.
SEVERABILITY. IF ANY TERM, PROVISION, COVENANT OR RESTRICTION
OF THIS AGREEMENT IS HELD BY A COURT OF COMPETENT JURISDICTION TO BE
INVALID, ILLEGAL, VOID OR UNENFORCEABLE, THE REMAINDER OF THE TERMS,
PROVISIONS, COVENANTS AND RESTRICTIONS SET FORTH HEREIN SHALL REMAIN IN
FULL FORCE AND EFFECT AND SHALL IN NO WAY BE AFFECTED, IMPAIRED OR
139
INVALIDATED, AND THE PARTIES HERETO SHALL USE THEIR COMMERCIALLY
REASONABLE EFFORTS TO FIND AND EMPLOY AN ALTERNATIVE MEANS TO ACHIEVE
THE SAME OR SUBSTANTIALLY THE SAME RESULT AS THAT CONTEMPLATED BY SUCH
TERM, PROVISION, COVENANT OR RESTRICTION. IT IS HEREBY STIPULATED AND
DECLARED TO BE THE INTENTION OF THE PARTIES THAT THEY WOULD HAVE
EXECUTED THE REMAINING TERMS, PROVISIONS, COVENANTS AND RESTRICTIONS
WITHOUT INCLUDING ANY OF SUCH THAT MAY BE HEREAFTER DECLARED INVALID,
ILLEGAL, VOID OR UNENFORCEABLE.
HEADINGS. THE HEADINGS IN THIS AGREEMENT ARE FOR CONVENIENCE
OF REFERENCE ONLY AND SHALL NOT LIMIT OR OTHERWISE AFFECT THE MEANING
HEREOF.
INDEPENDENT NATURE OF HOLDERS' OBLIGATIONS AND RIGHTS. THE
OBLIGATIONS OF EACH HOLDER HEREUNDER 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. 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 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.
*************************
140
WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
EUROSEAS LTD.
By:__________________________________________
Name:
Title:
[SIGNATURE PAGE OF HOLDERS FOLLOWS]
141
[SIGNATURE PAGE OF HOLDERS TO EUROSEAS RRA]
Name of Holder: __________________________
Signature of Authorized Signatory of Holder: __________________________
Name of Authorized Signatory: _________________________
Title of Authorized Signatory: __________________________
[SIGNATURE PAGES CONTINUE]
142
ANNEX A
Plan of Distribution
--------------------
Each Selling Stockholder (the "Selling Stockholders") of the common
stock ("Common Stock") of Euroseas Ltd., a Xxxxxxxx Islands corporation (the
"Company") and any of their pledgees, assignees and successors-in-interest may,
from time to time, sell any or all of their shares of Common Stock on the
Trading Market or any other stock exchange, market or trading facility on which
the shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. A Selling Stockholder may use any one or more of the
following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o 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;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o settlement of short sales entered into after the effective date of the
registration statement of which this prospectus is a part;
o broker-dealers may agree with the Selling Stockholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale;
o through the writing or settlement of options or other hedging
transactions, whether through an options exchange or otherwise; or
o any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144 under the
Securities Act of 1933, as amended (the "Securities Act"), if available, rather
than under this prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for
other brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the Selling Stockholders (or, if any broker-dealer
acts as agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated, but, except as set forth in a supplement to this Prospectus, in the
case of an agency transaction not in excess of a customary brokerage commission
in compliance with NASDR Rule 2440; and in the case of a principal transaction a
markup or markdown in compliance with NASDR IM-2440.
143
In connection with the sale of the Common Stock or interests therein,
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 the positions they assume. The Selling
Stockholders may also sell shares of the Common Stock short and deliver these
securities to close out their short positions, or loan or pledge the Common
Stock to broker-dealers that in turn may sell these securities. 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).
The Selling Stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents 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. Each Selling Stockholder has
informed the Company that it does not have any written or oral agreement or
understanding, directly or indirectly, with any person to distribute the Common
Stock. In no event shall any broker-dealer receive fees, commissions and markups
which, in the aggregate, would exceed eight percent (8%).
The Company is required to pay certain fees and expenses incurred by
the Company incident to the registration of the shares. The Company has agreed
to indemnify the Selling Stockholders against certain losses, claims, damages
and liabilities, including liabilities under the Securities Act.
Because Selling Stockholders may be deemed to be "underwriters" within
the meaning of the Securities Act, they will be subject to the prospectus
delivery requirements of the Securities Act. In addition, any securities covered
by a prospectus which qualify for sale pursuant to Rule 144 under the Securities
Act may be sold under Rule 144 rather than under a prospectus. Each Selling
Stockholder has advised us that it has not entered into any written or oral
agreements, understandings or arrangements with any underwriter or broker-dealer
regarding the sale of the Common Stock. There is no underwriter or coordinating
broker acting in connection with the proposed sale of the Common Stock by the
Selling Stockholders.
We agree to keep a prospectus effective until the earlier of (i) the
date on which the shares may be resold by the Selling Stockholders without
registration and without regard to any volume limitations by reason of Rule
144(e) under the Securities Act or any other rule of similar effect or (ii) all
of the shares have been sold pursuant to the prospectus or Rule 144 under the
Securities Act or any other rule of similar effect. The Common Stock will be
sold only through registered or licensed brokers or dealers if required under
144
applicable state securities laws. In addition, in certain states, the Common
Stock may not be sold unless it has been registered or qualified for sale in the
applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the Common Stock may not simultaneously
engage in market making activities with respect to the Common Stock for a period
of two business days prior to the commencement of the distribution. In addition,
the Selling Stockholders will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including Regulation M,
which may limit the timing of purchases and sales of shares of the Common Stock
by the Selling Stockholders or any other person. We will make copies of any
prospectus available to the Selling Stockholders and have informed them of the
need to deliver a copy of a prospectus to each purchaser at or prior to the time
of the sale.
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Annex B
EUROSEAS LTD.
SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial owner of common stock, par value $.01 per
share (the "Common Stock"), of Euroseas Ltd., a Xxxxxxxx Islands corporation
(the "Company"), (the "Registrable Securities") understands that the Company has
filed or intends to file with the Securities and Exchange Commission (the
"Commission") a registration statement on Form F-1 (the "Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Registrable Securities, in
accordance with the terms of the Registration Rights Agreement, dated as of
August [____, 2005 (the "Registration Rights Agreement"), among the Company and
the Purchasers named therein. A copy of the Registration Rights Agreement is
available from the Company upon request at the address set forth below. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
Certain legal consequences arise from being named as a selling
securityholder in the Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Registration
Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby elects to include the Registrable Securities owned
by it and listed below in Item 3 (unless otherwise specified under such Item 3)
in the Registration Statement.
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The undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
1. NAME.
(a) Full Legal Name of Selling Securityholder
--------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as (a)
above) through which Registrable Securities Listed in Item 3
below are held:
--------------------------------------------------------------
(c) Full Legal Name of Natural Control Person (which means a
natural person who directly or indirectly alone or with others
has power to vote or dispose of the securities covered by the
questionnaire):
--------------------------------------------------------------
2. ADDRESS FOR NOTICES TO SELLING SECURITYHOLDER:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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Telephone:
----------------------------------------------------------------------
Fax:
Contact Person:
3. BENEFICIAL OWNERSHIP OF REGISTRABLE SECURITIES:
(a) Type and Number of Registrable Securities beneficially owned:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
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4. BROKER-DEALER STATUS:
(a) Are you a broker-dealer?
Yes No
(b) If "yes" to Section 4(a), did you receive your Registrable
Securities as compensation for investment banking services to
the Company.
Yes No
Note: If no, the Commission's staff has indicated that you should
be identified as an underwriter in the Registration Statement.
(c) Are you an affiliate of a broker-dealer?
Yes No
(d) If you are an affiliate of a broker-dealer, do you certify
that you bought the Registrable Securities in the ordinary
course of business, and at the time of the purchase of the
Registrable Securities to be resold, you had no agreements or
understandings, directly or indirectly, with any person to
distribute the Registrable Securities?
Yes No
Note: If no, the Commission's staff has indicated that you should be
identified as an underwriter in the Registration Statement.
5. BENEFICIAL OWNERSHIP OF OTHER SECURITIES OF THE COMPANY OWNED BY THE SELLING
SECURITYHOLDER.
Except as set forth below in this Item 5, the undersigned is not the
beneficial or registered owner of any securities of the Company other
than the Registrable Securities listed above in Item 3.
(a) Type and Amount of Other Securities beneficially owned by the
Selling Securityholder:
-------------------------------------------------------------
-------------------------------------------------------------
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6. RELATIONSHIPS WITH THE COMPANY:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (owners of
5% of more of the equity securities of the undersigned) has held any
position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three
years.
State any exceptions here:
----------------------------------------------------------------------
----------------------------------------------------------------------
The undersigned agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein that may occur
subsequent to the date hereof at any time while the Registration Statement
remains effective.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items 1 through 6 and the
inclusion of such information in the Registration Statement and the related
prospectus and any amendments or supplements thereto. The undersigned
understands that such information will be relied upon by the Company in
connection with the preparation or amendment of the Registration Statement and
the related prospectus.
IN WITNESS WHEREOF the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated: Beneficial Owner:
------------------- --------------------------
By:
---------------------------------------
Name:
Title:
PLEASE FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND
RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO:
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Schedule 6(b)
Friends and Shellco stockholders
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