Exhibit 4.9
FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Registration Rights
Agreement") is made effective as of _______, 1999 by and between Gemini II,
Inc., a Delaware corporation (the "Company") and ___________________ (the
"Purchaser").
WHEREAS, Purchaser holds a Secured 13% Promissory Note (the "Note")
payable by the Company, in the amount of ______________;
WHEREAS, the Purchaser holds Common Stock Purchase Warrants (the
"Warrants") which may be exercised to acquire a certain number of shares of the
common stock, $.0001 par value, of the Company ("Common Stock"), subject to
adjustment (the "Shares");
WHEREAS, the Company wishes to grant the Purchaser certain registration
rights in respect of the Shares, as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties hereby agree as follows:
ARTICLE I
Definitions
As used in this Registration Rights Agreement, the following terms
shall have the meanings set forth below:
I.1 "COMMISSION" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
I.2 "REGISTRABLE SECURITIES" shall mean (i) the Shares; and (ii) any
Common Stock issued or issuable at any time or from time to time in respect of
the Shares upon a stock split, stock dividend, recapitalization or other similar
event involving the Company until such Shares and Common Stock are sold pursuant
to a Registration Statement or are eligible to be sold pursuant to an exemption
from registration under the Securities Act, including Rule 144 promulgated
thereunder.
I.3 The terms "REGISTER", "REGISTERED", and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering by the
Commission of the effectiveness of such registration statement.
I.4 "REGISTRATION EXPENSES" shall mean all expenses, other than Selling
Expenses (as defined below), incurred by the Company in complying with this
Registration Rights Agreement, including, without limitation, all registration,
qualification and filing fees, exchange listing fees, printing expenses, escrow
fees, fees and disbursements of counsel for the Company and for the
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Purchaser, blue sky fees and expenses, 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).
I.5 "SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
or any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
I.6 "SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Purchaser.
I.7 "UNDERWRITTEN PUBLIC OFFERING" shall mean a public offering in
which the Common Stock is offered and sold on a firm commitment basis through
one or more underwriters, all pursuant to an underwriting agreement between the
Company and such underwriters.
ARTICLE II
Registration Rights
II.1 DEMAND REGISTRATION.
II.1.1 At any time after the first anniversary of the
Company's first Underwritten Public Offering, within 90 days of the receipt of
notice from any Purchaser, the Company shall use its commercially reasonable
best efforts to file with the Securities and Exchange Commission a shelf
registration statement covering the resale of the Shares on Form X-0, X-0, or
S-3 (the "Registration Statement") which shall remain effective until the
earlier to occur of: (i) 2 years, or (ii) until such time as the Purchaser does
not beneficially own any Registrable Securities. The Company shall use its
commercially reasonable best efforts to cause such Registration Statement to
become effective as soon as practicable and to cause the Shares to be qualified
in such state jurisdictions as the Purchaser may request.
II.1.2 Except as set forth herein, the Company shall take all
commercially reasonable steps necessary to keep the Registration Statement
current and effective until all Shares have been distributed by the Purchaser
including any necessary refiling of additional registration statements.
II.1.3 The Company shall be entitled to postpone the filing of
the Registration Statement or to require that the Purchaser refrain from
effecting any public sales or distributions of the Registrable Securities
pursuant to a Registration Statement that has been declared effective by the
Commission or otherwise, if the board of directors of the Company reasonably
determines that such public sales or distributions pursuant to the Registration
Statement would interfere in any material respect with any transaction involving
the Company that the board of directors reasonably determines to be material to
the Company. The board of directors shall, as promptly as practicable, give the
Purchaser written notice of any such development. In the event of a request by
the board of directors of the Company that the Purchaser refrain from effecting
any public sales or distributions
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of the Registrable Securities, the Company shall be required to file the
Registration Statement or to lift such restrictions regarding effecting
public sales or distributions of the Registrable Securities as soon as
reasonably practicable after the board of directors shall reasonably
determine public sales or distributions by the Purchaser of the Registrable
Securities shall not interfere with such transaction, PROVIDED, that in no
event shall the postponement of the filing of the Registration Statement or
any requirement that the Purchaser refrain from effecting public sales or
distributions in the Registrable Securities extend for more than 120 days.
II.2 PIGGYBACK REGISTRATION.
II.2.1 At any time after the first anniversary of the
Company's first Underwritten Public Offering, and subject to the terms hereof,
if: (i) the Company or any shareholder of the Company shall determine to
register any of its securities (except for registration statements relating to
employee benefit plans, acquisitions or exchange offers) either for its own
account or the account of a security holder; and (ii) any Purchaser is the
beneficial owner of any Registrable Securities, the Company will promptly give
to the Purchaser written notice thereof no less than ten (10) days prior to the
filing of any registration statement, and include in such registration (and any
related qualification under blue sky laws or other compliance), and in the
underwriting involved therein, if any, such Registrable Securities as Purchaser
may request in a writing delivered to the Company within twenty (20) days after
the Purchaser's receipt of Company's written notice.
II.2.2 The Purchaser may participate in any number of
registrations until all of the Shares held by Purchaser have been distributed
pursuant to a registration.
II.2.3 If any registration statement is an Underwritten Public
Offering, the right of the Purchaser to registration pursuant to this Section
shall be conditioned upon such Purchaser's participation in such reasonable
underwriting arrangements as the Company shall make regarding the offering, and
the inclusion of Registrable Securities in the underwriting shall be limited to
the extent provided herein. The Purchaser and all other shareholders proposing
to distribute their securities through such underwriting shall (together with
the Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company.
Notwithstanding any other provision of this Section, if the managing underwriter
concludes in its reasonable judgment that the number of shares to be registered
for selling shareholders (including the Purchaser) would materially adversely
effect such offering, the number of Shares to be registered, together with the
number of shares of Common Stock or other securities held by other shareholders
proposed to be registered in such offering, shall be reduced on a pro rata basis
based on the number of Shares proposed to be sold by the Purchaser as compared
to the number of shares proposed to be sold by all shareholders. If the
Purchaser disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter, delivered not less than ten days before the effective date. The
Registrable Securities excluded by the managing underwriter or withdrawn from
such underwriting shall be withdrawn from such registration, and shall not be
transferred in a public distribution prior to 120 days after the effective date
of the registration statement relating thereto, or such other shorter period of
time as the underwriters may require.
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II.2.4 The Company shall have the right to terminate or
withdraw any registration initiated by it under this Section prior to the
effectiveness of such registration whether or not any of the Purchaser has
elected to include securities in such registration.
II.3 EXPENSES OF REGISTRATION. All Registration Expenses shall be borne
by the Company. Unless otherwise stated herein, all Selling Expenses relating to
securities registered on behalf of any Purchaser shall be borne by the Purchaser
selling the Registrable Securities.
II.4 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this
Registration Rights Agreement, the Company will keep the Purchaser advised in
writing as to the initiation of each registration, qualification and compliance
and as to the completion thereof. At its expense, the Company will:
II.4.1 Prepare and file with the Commission a registration
statement with respect to such securities and use its commercially reasonable
efforts to cause such registration statement to become and remain effective
until the distribution described in such registration statement has been
completed;
II.4.2 Furnish to each underwriter such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as such underwriter
may reasonably request in order to facilitate the public sale of the shares by
such underwriter, and promptly furnish to each underwriter and the Purchaser
notice of any stop-order or similar notice issued by the Commission or any state
agency charged with the regulation of securities, and notice of any Nasdaq or
securities exchange listing.
II.4.3 Cause the Shares to be listed on the securities
exchange on which the Common Stock is approved for listing.
II.5 INDEMNIFICATION.
II.5.1 To the extent permitted by law, the Company will
indemnify the Purchaser, each of its officers and directors and partners, if
any, and each person controlling the Purchaser within the meaning of Section 15
of the Securities Act, with respect to which registration, qualification or
compliance has been effected pursuant to this Registration Rights Agreement, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
to the extent such expenses, claims, losses, damages or liabilities arise out of
or are based on any untrue statement (or alleged untrue statement) of a material
fact contained in any registration statement, prospectus, offering circular or
other similar document, or any amendment or supplement thereto, incident to any
such registration, qualification or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, or any violation by the Company of the
Securities Act or any rule or regu-
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lation promulgated under the Securities Act applicable to the Company in
connection with any such registration, qualification or compliance, and the
Company will reimburse Purchaser, its officers and directors and partners,
and each person controlling the Purchaser, each such underwriter and each
person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action; provided,
however, that the indemnity contained herein shall not apply to amounts paid
in settlement of any claim, loss, damage, liability or expense if settlement
is effected without the consent of the Company (which consent shall not
unreasonably be withheld); provided, further, that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and
in conformity with written information furnished to the Company by Purchaser,
such controlling person or such underwriter specifically for use therein.
Notwithstanding the foregoing, insofar as the foregoing indemnity relates to
any such untrue statement (or alleged untrue statement) or omission (or
alleged omission) made in the preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at the time
the registration statement becomes effective or in the final prospectus filed
with the Commission pursuant to the applicable rules of the Commission or in
any supplement or addendum thereto, the indemnity agreement herein shall not
inure to the benefit of any underwriter if a copy of the final prospectus
filed pursuant to such rules, together with all supplements and addenda
thereto, was not furnished to the person or entity asserting the loss,
liability, claim or damage at or prior to the time such furnishing is
required by the Securities Act.
II.5.2 To the extent permitted by law, the Purchaser will, if
securities held by the Purchaser are included in the securities as to which such
registration, qualification or compliance is being effected pursuant to terms
hereof, indemnify the Company, each of its directors and officers, each
underwriter, if any, of the Company's securities covered by such a registration
statement, each person who controls the Company or such underwriter within the
meaning of Section 15 of the Securities Act, and each other person selling the
Company's securities covered by such registration statement, each of such
person's officers and directors and each person controlling such persons within
the meaning of Section 15 of the Securities Act, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering circular or
other document, or any 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 any violation by Purchaser of any rule or regulation
promulgated under the Securities Act applicable to Purchaser and relating to
action or inaction required of Purchaser in connection with any such
registration, qualification or compliance, and will reimburse the Company, such
other persons, such directors, officers, persons, underwriters or control
persons for any legal or other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action, in
each case to the extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company by such Purchaser specifically for use therein; provided, however, that
the indemnity contained herein shall not apply to amounts paid in settlement of
any claim, loss, damage, liability or expense if settlement is effected without
the consent of such
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Purchaser (which consent shall not be unreasonably withheld). Notwithstanding
the foregoing, the liability of such Purchaser under this subsection shall be
limited in an amount equal to the net proceeds from the sale of the shares
sold by Purchaser, unless such liability arises out of or is based on willful
conduct by Purchaser. In addition, insofar as the foregoing indemnity relates
to any such untrue statement (or alleged untrue statement) or omission (or
alleged omission) made in the preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at the time
the registration statement becomes effective or in the final prospectus filed
pursuant to applicable rules of the Commission or in any supplement or
addendum thereto, the indemnity agreement herein shall not inure to the
benefit of the Company or any underwriter if a copy of the final prospectus
filed pursuant to such rules, together with all supplements and addenda
thereto, was not furnished to the person or entity asserting the loss,
liability, claim or damage at or prior to the time such furnishing is
required by the Securities Act.
II.5.3 Notwithstanding the foregoing, each party entitled to
indemnification under this Section (the "Indemnified Party") shall give notice
to the party required to provide indemnification (the "Indemnifying Party")
promptly after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of such
claim or litigation, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may participate
in such defense at such party's expense, and provided further that the failure
of any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Registration Rights Agreement
unless the failure to give such notice is materially prejudicial to an
Indemnifying Party's ability to defend such action and provided further, that
the Indemnifying Party shall not assume the defense for matters as to which
there is a conflict of interest or as to which the Indemnifying Party is
asserting separate or different defenses, which defenses are inconsistent with
the defenses of the Indemnified Party. No Indemnifying Party, in the defense of
any such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. No Indemnified Party shall consent to entry of any
judgment or enter into any settlement without the consent of each Indemnifying
Party.
II.5.4 If the indemnification provided for in this Section is
unavailable to an Indemnified Party in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and all shareholders offering
securities in the offering (the "Selling Security Holders") on the other from
the offering of the Company's securities, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the Selling
Security Holders on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
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other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Selling Security Holders on the other shall be
the net proceeds from the offering (before deducting expenses) received by the
Company on the one hand and the Selling Security Holders on the other. The
relative fault of the Company on the one hand and the Selling Security Holders
on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Selling Security Holders and the parties' relevant intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Selling Security Holders agree that
it would not be just and equitable if contribution pursuant to this Section were
based solely upon the number of entities from whom contribution was requested or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section. The amount paid or payable by
an Indemnified Party as a result of the losses, claims, damages and liabilities
referred to above in this Section shall be deemed to include any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim, subject to the provisions
hereof. Notwithstanding the provisions of this Section, no Selling Shareholder
shall be required to contribute any amount or make any other payments under this
Registration Rights Agreement which in the aggregate exceed the proceeds
received by such Selling Shareholder. No person guilty of fraudulent
misrepresentation (within the meaning of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation.
II.6 CERTAIN INFORMATION.
II.6.1 The Purchaser agrees, with respect to any Registrable
Securities included in any registration, to furnish to the Company such
information regarding Purchaser, the Registrable Securities and the distribution
proposed by the Purchaser as the Company may reasonably request in writing and
as shall be required in connection with any registration, qualification or
compliance referred to herein.
II.6.2 The failure of the Purchaser to furnish the information
requested pursuant to this Section shall not affect the obligation of the
Company to the other Selling Security Holders who furnish such information
unless, in the reasonable opinion of counsel to the Company or the underwriters,
such failure impairs or may impair the legality of the Registration Statement or
the underlying offering.
II.7 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of Restricted Securities (used herein as defined in Rule 144 under the
Securities Act) to the public without registration, the Company agrees to use
its best lawful efforts to:
II.7.1 Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act, at all
times during which the Company is subject to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
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II.7.2 File with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act (at all times during which the Company is subject to such reporting
requirements); and
II.7.3 So long as any Purchaser owns any Restricted Securities
(as defined in Rule 144 promulgated under the Securities Act), to furnish to
Purchaser forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 and with regard to
the Securities Act and the Exchange Act (at all times during which the Company
is 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 and other information in the possession of or reasonably obtainable by
the Company as the Purchaser may reasonably request in availing itself of any
rule or regulation of the Commission allowing the Purchaser to sell any such
securities without registration.
II.8 TRANSFERABILITY. The rights conferred by this Registration Rights
Agreement shall not be transferable to a recipient of Registrable Securities.
II.9 LOCKUP AGREEMENT. The Purchaser hereby agrees to enter into a
lockup agreement regarding sales of the Registrable Securities if so requested
by the underwriter(s) in any Underwritten Public Offering, which lockup
agreement shall have the same terms and conditions as the lockup agreement
entered into by officers and directors of the Company.
II.10 GOVERNING LAW. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF NEW YORK. COMPANY HEREBY
CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
WITHIN THE STATE OF NEW YORK OR, AT THE SOLE OPTION OF PURCHASER, IN ANY OTHER
COURT IN WHICH PURCHASER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH
HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. COMPANY WAIVES
ANY OBJECTION OF FORUM NON CONVENIENCE AND VENUE. COMPANY AND PURCHASER EACH
HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON,
ARISING OUT OF, OR IN ANY WAY RELATING TO THIS REGISTRATION RIGHTS AGREEMENT
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
II.11 ENTIRE AGREEMENT; AMENDMENT. This Registration Rights Agreement,
together with that certain Agreement of Purchase and Sale by and between the
Company and the Purchaser, dated the date hereof, and that certain Warrants
Agreement by and between the Purchaser and the Company, dated the date hereof,
constitute the full and entire understanding and agreement between the parties
with regard to the subject hereof. This Registration Rights Agreement, or any
provision hereof, may not be amended, waived, discharged or terminated without
the prior written consent of the Company and the Purchaser.
II.12 NOTICES, ETC. Except as otherwise provided, all communications to
the Company or the Purchaser provided for herein or with reference to this
Agreement shall be deemed to have been
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sufficiently given or served for all purposes on the third Business Day after
being sent as certified or registered mail, postage and charges prepaid, to
the following addresses: if to the Company: 000 Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000, Attn: Xxxxx Xxxxx, or at any other address designated by the
Company in writing to Purchaser; if to Purchaser: _____________________________
____________________________________________________ , or at any other
address designated by Purchaser to the Company in writing.
II.13 DELAYS OR OMISSIONS. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any party
to this Registration Rights Agreement shall impair any such right, power or
remedy of such party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Registration Rights Agreement, or any waiver on the part of any party of any
provisions or conditions of this Registration Rights Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Registration Rights Agreement or by law
or otherwise afforded to any party to this Registration Rights Agreement, shall
be cumulative and not alternative.
II.14 COUNTERPARTS. This Registration Rights Agreement may be executed
in any number of counterparts, each of which shall be enforceable against the
parties actually executing such counterparts, and all of which together shall
constitute one instrument.
II.15 SEVERABILITY. In the event that any provision of this
Registration Rights Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Registration Rights
Agreement shall continue in full force and effect without said provision.
II.16 TITLES AND SUBTITLES. The titles and subtitles used in this
Registration Rights Agreement are used for convenience only and are not
considered in construing or interpreting this Registration Rights Agreement.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement effective upon the date first set forth above.
COMPANY:
Gemini II, Inc.
By:
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PRINT NAME:
PRINT TITLE:
PURCHASER:
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