REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT
(this
“Agreement”)
is
made and entered into as of this ___ day of _________________, 2006, by and
between WELUND FUND, INC., a Nevada corporation (the “Company”),
and
______________________________ (a “Holder”).
Premises
This
Agreement shall govern the rights of the Holder respecting the registration
under the Securities Act of the resale of securities owned by Holder and
acknowledges that the Company expects that it will enter into registration
rights agreements of similar tenor and effect respecting additional shares
of
Common Stock to be issued.
Agreement
NOW,
THEREFORE, based on the foregoing premises, which are incorporated herein by
reference, and for and in consideration of the mutual promises and covenants
of
the parties set forth herein, the parties hereby agree as follows:
1. Definitions.
For
purposes of this Agreement:
(a) “Agreement”
shall
mean this Agreement.
(b) “Common
Stock”
shall
mean the common stock of the Company, par value $0.0001 per share.
(c) “Company”
has
the
meaning set forth in the introductory paragraph of this Agreement.
(d) “Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
(e) “Holder”
means
a
Holder of Registrable Securities, or any permitted assignee of any of the
foregoing, if the transfer to such assignee has been recorded in the corporate
books and records of the Company, in accordance with the provisions of this
Agreement.
(f) “Holders”
shall
mean the Holder together with all other Holders of Registrable
Securities.
(g “Register,”
“registered,”
and
“registration”
refer
to a registration effected by preparing and filing a registration statement
on
Form SB-2 in compliance with the Securities Act and the declaration or ordering
of effectiveness of such registration statement.
(h) “Registrable
Securities”
means
the Common Stock issued by the Company to the Holder pursuant to the
Subscription Agreement dated [__________] [__], 2006 and any Common Stock or
other securities issued or issuable in respect of such shares upon any stock
split, stock dividend, recapitalization, or similar event, and any other shares
the Company wishes to include in a registration statement undertaken by the
Company whether or not part of an under written public offering, provided,
however,
that
shares of Common Stock or other securities shall cease to be a Registrable
Securities for purposes of this Agreement at such time as: (i) counsel to
the Company renders an opinion to the Holder of such shares or security to
the
effect that such shares or security can be freely transferred without
registration under the Securities Act, either through a sale of all of such
securities of such Holder in a single 90-day period by satisfying all of the
conditions of Rule 144 or otherwise (which counsel and opinion shall be
reasonably acceptable to such Holder); (ii) counsel to a Holder of such
shares or security renders an opinion to the Company to the effect that such
shares or security can be freely transferred without registration under the
Securities Act, either through a sale of all of such securities of such Holder
in a single 90-day period by satisfying all of the conditions of Rule 144 or
otherwise (which counsel and opinion shall be reasonably acceptable to the
Company); (iii) securities for which a registration statement respecting
the sale of such securities has become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement; (iv) such securities have been sold as permitted by Rule 144 (or
any successor provision) under the Securities Act and the purchaser thereof
does
not receive “restricted securities” as defined in Rule 144; (v) such
securities have been held, either separately or in the aggregate, to the extent
tacking of holding periods is permitted under the Securities Act, for the period
specified in paragraph (k) of Rule 144 (or any similar provision then in force),
so as to permit the sale of such shares without restrictions on transfer under
the Securities Act; or (vi) such securities shall have ceased to be
outstanding.
(i) “Registration
Expenses”
shall
mean all expenses incurred by the Company in complying with section 2 hereof,
including all registration, qualification, and filing fees; printing expenses;
escrow fees; fees and disbursements of counsel for the Company; fees and
expenses incurred in qualifying the subject securities for resale in applicable
states; and the expense of any special audits incident to or required by any
such registration (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company).
(j) “Securities
Act”
means
the Securities Act of 1933, as amended, or any similar or successor federal
statute and the rules and regulations of the SEC thereunder, all as the same
shall be in effect at the time.
(k) “SEC”
means
the United States Securities and Exchange Commission.
(l) “Selling
Expenses”
shall
mean all underwriting discounts, selling commissions, and stock transfer taxes
applicable to the securities registered by the Holders and all fees and
disbursements of counsel for the Holders.
(m)
“Violation”
has
the
meaning set forth in section 9(a) hereof.
2. Piggyback
Registration.
(a) After
the
close of a merger or acquisition transaction between the Company and a target
operating company, if the Company initiates a Registration (either for its
own
account or the account of a security holder or holders exercising their
respective demand registration rights), the Company will: (i) promptly give
the
Holders written notice thereof (which will include a list of the jurisdictions
in which the Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws) and (ii) include in such
registration (and any related qualification under blue sky laws or other
compliance), and in any underwriting involved therein, all the Registrable
Securities specified in a written request delivered to the Company by the Holder
within twenty (20) days after delivery of such written notice from the Company
subject to the underwriters’ marketing limitation but in no event less than 10%
of the securities included in such registration statement; provided,
however,
that
the Company shall not be obligated to take any action to effect any such
registration, qualification, or compliance pursuant to this subsection:
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(i) that
is
not permitted by the SEC;
(ii) in
any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such registration,
qualification, or compliance unless the Company is already subject to service
in
such jurisdiction and except as may be required by the Securities Act;.
(b) The
Company will as soon as practicable, use its commercially reasonable best
efforts to cause such Registration to become effective or qualified (including
the execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable state securities laws, and appropriate compliance
with applicable regulations issued under the Securities Act and any other
governmental requirements or regulations) and as would permit or facilitate
the
sale and distribution of all or such portion of such Registrable Securities
of
any Holder or Holders;
(c) The
Holders shall have unlimited Piggyback Registration rights until all the
Registrable Securities are registered as provided herein.
(d) In
the
event that a registration pursuant to this section 2 is for a registered public
offering involving an underwriting, the Company shall so advise the Holders
as
part of the notice given pursuant to this section. The right of any Holder
to
registration pursuant to this section shall be conditioned upon such Holder’s
participation in the underwriting arrangements required by this section and
the
inclusion of such Holder’s Registrable Securities in the underwriting, to the
extent requested and provided herein. The Company shall (together with all
Holders proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by a majority in interest of the
Holders (which managing underwriter shall be reasonably acceptable to the
Company). Notwithstanding any other provision of this section, if the managing
underwriter advises the Company in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Company shall
so
advise all Holders of Registrable Securities and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all Holders thereof in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders at the time of filing the registration statement. No Registrable
Securities excluded from the underwriting by reason of the underwriter’s
marketing limitation shall be included in such registration. To facilitate
the
allocation of shares in accordance with the above provisions, the Company or
the
underwriters may round the number of shares allocated to any Holder to the
nearest 1,000 shares. If any Holder of Registrable Securities disapproves of
the
terms of the underwriting, such person may elect to withdraw therefrom by
written notice to the Company, the managing underwriter, and the Holders. The
Registrable Securities or other securities so withdrawn shall also be withdrawn
from registration, and such Registrable Securities shall not be transferred
in a
public distribution prior to 90 days after the date of the final prospectus
used
in such public offering.
3. Obligations
of the Company.
Whenever required under this Agreement to effect the registration of any
Registrable Securities, the Company shall proceed diligently and in good faith
to:
(a) prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and use commercially reasonable best efforts to cause such
registration statement to become effective and keep such registration statement
effective until the earliest of the passage of one year, until all Registrable
Securities included therein have been sold by the selling Holder(s), or until
the Company has received an opinion from its legal counsel that the sale of
such
securities is no longer required to be registered by reason of Rule 144(k)
adopted under the Securities Act;
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(b) use
commercially reasonable best efforts to prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement for a period of at
least one year, excluding any period during which securities cannot be sold
thereunder as described in subsection (f) of this section and section
5(b);
(c) furnish
to the Holders of the Registrable Securities included in such registration
statement such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such
other documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them;
(d) use
commercially reasonable best efforts to register and qualify the securities
covered by such registration statement under such other or state securities
laws
of such jurisdictions as shall be reasonably requested by the Holders;
provided
that,
the Company is not required in connection therewith or as a condition thereto
to
qualify to do business or to file a general consent to service of process in
any
such states or jurisdictions;
(e) in
the
event of any underwritten public offering of Registrable Securities, enter
into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering;
(f) timely
notify each Holder of Registrable Securities covered by such registration
statement, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event that limits
the Holder’s ability to rely on such registration statement, including any event
that results in the prospectus included in such registration statement, as
then
in effect, containing an untrue statement of a material fact or omitting to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing; any stop order issued by the SEC or any state securities agency;
or
the suspension or limitation of any state exemption on which the Company and
the
Holders are relying, in which case, the Company shall use commercially
reasonable best efforts to file an amendment to update the registration
statement to the extent necessary or to take other remedial action;
(g) cause
all
such Registrable Securities registered pursuant hereunder to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(h) provide
a
transfer agent and registrar for all Registrable Securities registered pursuant
hereunder and a CUSIP number for all such Registrable Securities, in each case
not later than the effective date of such registration; and
(i) in
the
event
of an underwritten public offering of Registrable Securities, use commercially
reasonable best efforts to furnish, if required under the terms of the
underwriting agreement, on the date that such Registrable Securities are to
be
delivered to the underwriters for sale in connection with a registration:
(i) an opinion of the counsel representing the Company for the purposes of
such registration, dated such date, in form and substance as is customarily
given to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of Registrable
Securities, and (ii) a letter from the independent certified public
accountants of the Company dated such date, in form and substance as is
customarily given by independent certified public accountants to underwriters
in
an underwritten public offering, addressed to the underwriters, if any, and
to
the Holders requesting registration of Registrable Securities.
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4. Cooperation
by the Holder.
(a) Each
Holder shall furnish to the Company in writing such information and affidavits
as the Company may reasonably require from the Holders in connection with any
registration, qualification, or compliance with respect to such Registrable
Securities. It shall be a condition precedent to the obligations of the Company
to take any action pursuant to this Agreement with respect to the Registrable
Securities of any selling Holder that such Holder shall furnish to the Company
such information regarding the Holder, the Registrable Securities and other
securities in the Company held, and the intended method of disposition of such
securities as shall be required to effect the registration of such Holder’s
Registrable Securities.
(b) Notwithstanding
subsection (f) of section 3, Holder shall have the obligation to notify the
Company of its intent to sell Registrable Securities prior to any sales of
Registrable Securities under the registration statement.
In the
event the Company provides notice of the happening of any event of the kind
described in subsection (f) of section 3, Holder will forthwith discontinue
disposition of the Registrable Securities until Holder’s receipt of the copies
of the supplemented or amended prospectus contemplated by subsection (f) of
section 3 or until it is advised in writing by the Company that the use of
such
prospectus may be resumed and has received copies of any additional or
supplemental filings that are incorporated by reference in such prospectus,
and
if so directed by the Company, Holder will, or will request the managing
underwriter or underwriters, if any, to, deliver to the Company all copies,
other than permanent file copies then in Holder’s possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
(c) At
the
end of any periods during which the Company is obligated to keep any
registration statement current and effective as provided herein, Holder shall
discontinue sales of securities pursuant to such registration statement upon
receipt of notice from the Company of its intention to remove from registration
the securities covered by such registration statement that remain unsold, and
Holder shall notify the Company of the number of securities registered that
remain unsold promptly after receipt of such notice from the
Company.
(d) Holder
acknowledges that the registration of the sale of the Registrable Securities
or
the availability of an exemption from registration in certain states may impose
certain limitations and conditions on the manner and nature of such sales.
The
Company shall advise Holder in writing of such registration or exemption and
the
related limitations and conditions from time to time. Holder shall be solely
responsible for Holder’s own compliance with such limitations and
conditions.
5. Expenses
of Registration.
All
Registration Expenses incurred in connection with any registration pursuant
to
section 2 shall be borne by the Company. All Selling Expenses in any such
registration shall be borne by the Holders of Registrable Securities pro rata
on
the basis of the number of shares to be registered.
6. Delay
of Registration.
No
Holder shall have any right to obtain or seek an injunction restraining or
otherwise delaying any such registration as the result of any controversy that
might arise with respect to the interpretation or implementation of this
Agreement.
5
7. Indemnification.
In the
event any Registrable Securities are included in a registration
statement:
(a) To
the
extent permitted by law, the Company will indemnify and hold harmless each
Holder whose Registrable Securities are included in a registration statement,
any underwriter (as defined in the Securities Act) for such Holder, and each
person, if any, who controls such Holder or underwriter within the meaning
of
the Securities Act or the Exchange Act, against any losses, claims, damages,
or
liabilities to which they may become subject under the Securities Act, insofar
as such losses, claims, damages, or liabilities arise out of or are based upon
any of the following statements, omissions or violations (collectively, a
“Violation”):
(i) any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements thereto;
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; or (iii) any Violation or alleged Violation by the Company of
the Securities Act or any rule or regulation promulgated under the Securities
Act; and the Company will pay to each such Holder, underwriter, or controlling
person any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided,
however,
that
the indemnity agreement shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability, or action to the extent that it arises out of or
is
based upon a Violation that occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter, or controlling person, or failure
of Holder to comply with its covenants and agreements contained in Section
4
respecting sale of Registrable Securities or any statement or omission in any
prospectus that is converted in any subsequent prospectus that was delivered
to
the Holder prior to the pertinent sale or sale by the Holder.
(b) To
the
extent permitted by law, each selling Holder whose Registrable Securities are
included in a registration statement will indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Company within
the
meaning of the Securities Act, any underwriter, any other Holder selling
securities in such registration statement, and any controlling person of any
such underwriter or other Holder, against any losses, claims, damages, or
liabilities to which any of the foregoing persons may become subject under
the
Securities Act or the Exchange Act, insofar as such losses, claims, damages,
or
liabilities (or actions in respect thereto) arise out of or are based upon
any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration;
and each such Holder will pay any legal or other expenses reasonably incurred
by
any person intended to be indemnified in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided,
however,
that
the indemnity agreement shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld.
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(c) Promptly
after receipt by an indemnified party of notice of the commencement of any
action (including any governmental action), such indemnified party will, if
a
claim in respect thereof is to be made against any indemnifying party under
this
subsection, deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to
participate in, and to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided,
however,
that an
indemnified party (together with all other indemnified parties that may be
represented without conflict by one counsel) shall have the right to retain
one
separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained
by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement
of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this subsection, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to
any
indemnified party otherwise than under this subsection.
(d) If
the
indemnification provided for in this section is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any
loss,
liability, claim, damage, or expense referred to therein, then the indemnifying
party, in lieu of indemnifying such indemnified party hereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the
one
hand and of the indemnified party on the other in connection with the statements
or omissions that resulted in such loss, liability, claim, damage, or expense
as
well as any other relevant equitable considerations. The relative fault of
the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties’
relative intent, knowledge, access to information, and opportunity to correct
or
prevent such statement or omission. Notwithstanding the foregoing provision,
the
contribution obligation of each Holder shall be in proportion to its sale of
Registrable Securities to which such loss relates and shall not be joint with
any other Holders.
(e) Each
Holder’s obligation to indemnify under this Section 7 shall be limited to the
aggregate amount of Registrable Securities registered on registration statements
giving rise to Violations calculated based on the fair market value of such
Registrable Securities on the date a claim is initiated, unless such Violations
are willful in nature.
(f) Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with an underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall
control.
(g) The
obligations of the Company and Holders under this section shall survive the
completion of any offering of Registrable Securities pursuant to a registration
statement.
8. Current
Public Information.
With a
view to making available the benefits of certain rules and regulations of the
SEC that may at any time permit the sale of the restricted securities to the
public without registration, after such time as the Shares have been held,
either separately or in the aggregate, to the extent tacking of holding periods
is permitted under the Securities Act, to satisfy the requirements of paragraph
(d) of Rule 144 through the date after which the restricted securities can
be
resold without restriction and without complying with Rule 144 pursuant to
the
provisions of paragraph (k) of Rule 144 or any successor rule, the Company
agrees to use its best efforts to:
7
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144 under the Securities Act, at all times after the effective date that
the Company becomes subject to the reporting requirements of Section 13 or
15(d)
of the Exchange Act;
(b) file
with
the SEC in a timely manner all reports and other documents required of the
Company under the Exchange Act (at any time after it has become subject to
such
reporting requirements); and
(c) furnish
to the Holders forthwith upon request a written statement by the Company as
to
its compliance with the reporting requirements of said Rule 144 (at any time
after 90 days after the effective date of the first registration statement
filed
by the Company for an offering of its securities to the general public) and
of
the Exchange Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company as the Holders
may
reasonably request in availing themselves of any rule or regulation of the
SEC
allowing a Holder to sell any such securities without registration.
9. Transfer
of Registration Rights.
The
rights and all related obligations under this Agreement shall automatically
be
transferred to and binding on any transferee or assignee of the Registrable
Securities; provided
that:
(a) the Company is, within a reasonable time after such transfer, furnished
with written notice of the name and address of such transferee or assignee
and
the securities with respect to which such registration rights are being
assigned; (b) such transferee or assignee agrees in writing to be bound by
and subject to the terms and conditions of this Agreement; (c) the transfer
or assignment is in compliance with the Securities Act and applicable state
securities law or an exemption from the registration requirements of the
Securities Act and applicable state securities laws; (d) such transferee or
assignee shall not be deemed by the Board of Directors of the Company to be
a
competitor or potential competitor of the Company; and (e) such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted
under
the Securities Act.
10.
Market
Stand Off Agreement.
In
order to facilitate the possibility of future public offerings of Common Stock,
the Holder and any subsequent Holder agree that the shares of Common Stock
included in the Registrable Securities will not be resold during a period
commencing 15 days preceding the effective date of a registration statement
under the Securities Act for a public offering for cash by the Company of its
Common Stock or securities convertible into or exercisable or exchangeable
for
its Common Stock and continuing until the earlier of abandonment of the proposed
public offering or 90 days following the date of the last closing in the public
offering period, but not to exceed, in any event, 180 days. Holders of such
securities shall cooperate with the Company in providing reasonable written
assurances respecting the foregoing to the underwriter of any such public
offering. During the above restricted period, Holders shall not directly or
indirectly sell, offer to sell, contract to sell (including any short sale),
grant any option to purchase, or otherwise transfer or dispose of (other than
to
donees who agree to be similarly bound) shares of Common Stock included in
the
Registrable Securities at any time during such period except securities included
in such registration. In order to enforce the foregoing covenant, the Company
may impose stop-transfer instructions respecting such shares of Common Stock
held by each Holder, which shall be binding on any assignee or successor of
such
Holder (and the shares or securities of every other person subject to the
foregoing restriction), until the end of such restricted period. At the request
of the company, the Holder will confirm in writing the foregoing covenant.
11.
Miscellaneous.
8
(a) Except
as
otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties (including permitted transferees of any shares of
Registrable Securities). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
(b) This
Agreement shall be governed by and construed under the laws of the state of
Nevada.
(c) This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
(d) The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
(e) This
Agreement may be executed in one or more counterparts of like tenor, each of
which shall be deemed an original, and all of which taken together shall be
considered a single instrument.
(f) Unless
otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given if delivered
personally, by facsimile transmission (if receipt is confirmed by the facsimile
operator of the recipient), by overnight courier service, or by registered
or
certified mail (return receipt requested), postage prepaid, to the parties
at
the addresses indicated for such party on the signature page hereof. For the
purposes of any notice required to be given to Holders, the Company can rely
on
the address for the registered Holder of the securities in question as reflected
on its stock transfer records, and such notice shall be deemed adequate notice
to the original or any subsequent Holder. Any notice hereunder delivered in
person or by facsimile (if receipt is confirmed by the facsimile operator of
the
recipient) shall be deemed given on the date hereof; any notice by registered
or
certified mail shall be deemed given three days after the date of mailing;
and
any notice by overnight courier shall be deemed given one day after the date
so
sent, provided
that
notices of a change of address shall be effective only upon receipt
thereof.
(g) If
any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys’
fees, costs, and necessary disbursements in addition to any other relief to
which such party may be entitled.
(h) The
parties hereby specifically acknowledge that monetary damages for breach of
this
Agreement may be difficult to determine and/or inadequate to compensate the
parties for such breach and hereby agree that, in the event of any breach,
the
parties, in addition to any other remedies they may have under the terms of
this
Agreement or at law, shall have the right to bring an action in equity for
an
injunction against the breach or threatened breach or seeking specific
performance of the obligations of the other party under the terms of this
Agreement.
(i) Any
term
of this Agreement may be amended, and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and the Holders of at least two-thirds of the Registrable Securities then
outstanding. Any amendment or waiver effected in accordance with this subsection
shall be binding upon each Holder of any Registrable Securities then
outstanding, each future Holder of all such Registrable Securities, and the
Company.
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(j) If
one or
more provisions of this Agreement are held to be unenforceable under applicable
law, such provision shall be excluded from this Agreement and the balance of
the
Agreement shall be interpreted as if such provision were so excluded and shall
be enforceable in accordance with its terms.
(k)
All
shares of Registrable Securities held or acquired by affiliated entities or
persons shall be aggregated together for the purpose of determining the
availability of any rights under this Agreement.
(l)
|
This
Agreement constitutes the full and entire understanding and agreement
between the parties with regard to the subject matter
hereof.
|
[Signature
page follows]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
WELUND
FUND, INC.:
|
|
_________________________________________ | |
Name:
____________________________________
|
|
Title:
_____________________________________
|
|
HOLDER:
|
|
_________________________________________ | |
Signature
|
|
_________________________________________ | |
Printed
Name
|
|
_________________________________________ | |
Number
and Street
|
|
_________________________________________ | |
City,
State, and Zip
|
11