REGISTRATION RIGHTS AGREEMENT
EXHIBIT
4.4
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made effective
as of December __, 2008, by and among SignPath Pharma, Inc., a Delaware
corporation (the “Company”), and the investors
signatory hereto (each a “Purchaser” and collectively,
the “Purchasers”).
RECITALS
WHEREAS,
each Purchaser has executed and delivered to the Company a Subscription
Agreement dated December 12, 2008, by and between the Company and each
Purchaser, dated the date hereof (the “Subscription Agreement”), to
purchase Units, each Unit consisting of one share of the Company’s Series A
Convertible Preferred Stock, $.10 par value (“Preferred Stock”), and a
warrant (the “Warrant”)
to purchase 1,177 shares of the Company’s common stock, $.001 par value, (the
“Common Stock”);
and
WHEREAS,
as a condition of the Subscription Agreement, the Company is required to execute
and deliver this Agreement to the Purchasers to provide for certain registration
rights with respect to Common Stock and shares of Common Stock underlying the
Warrants (“Warrant
Shares”) upon the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of these premises and the mutual promises and
covenants hereinafter set forth and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. In
addition to the terms defined elsewhere in this Agreement, the following
capitalized terms shall have the following meanings. Capitalized terms used and
not otherwise defined herein that are defined in the Subscription Agreement
shall have the meanings given such terms in the Subscription
Agreement.
“Business Day” means any day
other than a Saturday, Sunday or legal holiday in the State of New
York.
“Effectiveness Date” means,
with respect to the Registration Statement to be filed pursuant to Section 2(a), the
earlier of (a) the 120th business day from the date on which such Registration
Statement is filed, and (b) the date on which the SEC declares the Registration
Statement effective.
“Effectiveness Period” is
defined in Section 2(a).
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Filing Date” means, with
respect to the Registration Statement to be filed hereunder, the date that is
sixty (60) days from November 28, 2008.
“Holder” or “Holders” means the holder or
holders, as the case may be, from time to time of Registrable Securities
(including any permitted assignee).
“Holders’ Representative” means Xxxxxx
Associates L.P., or any other person that has been appointed by the Holders of a
majority of the Registrable Securities to act as representative of the Holders
for purposes of this Agreement.
“Indemnified Party” is defined
in Section 5(c).
“Indemnifying Party” is defined
in Section 5(c).
“Losses” is defined in Section 5(a).
“Person” means an individual or
corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an
agency or subdivision thereof) or other entity of any kind.
“Proceeding” means an action,
claim, suit, investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether commenced or
threatened.
“Prospectus” means the prospectus
included in the Registration Statement (including, without limitation, a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Registration Statement, and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Registrable Securities” means
(i) the shares of Common Stock issuable upon the conversion of any share of
Preferred Stock sold pursuant to the Subscription Agreement, (ii) Warrant Shares
issuable upon any exercise of Warrants, (iii) the shares of Common Stock issued
in connection with the Company’s bridge financing to certain private investors
(as described in the private placement memorandum of the Company, dated May 28,
2008 ) (the “Bridge
Shares”), (iv) the shares of Common Stock issuable in connection with the
Closing of Subscription Agreements in the amount of $1,500,000 on November 28,
2008, and (v) any shares issued upon any stock split, dividend or other
distribution, recapitalization or similar event with respect to the foregoing;
provided, that
the Company shall have the right to reduce the number of Registrable Securities
if in the reasonable opinion of counsel to the Company, the Registration
Statement could not be declared effective by the SEC without such reduction as a
result of SEC guidance pursuant to Rule 415 promulgated under the Securities
Act. Any such reduction shall be pro rata among all Holders. In
addition, Registrable Securities shall also include any shares of Common Stock
issuable pursuant to Section 2(b) of this Agreement.
“Registration Statement” means
the registration statements required to be filed hereunder, including (in each
case) the Prospectus, amendments and supplements to the 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 the registration statement.
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“Rule 144” means Rule 144
promulgated by the SEC 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 SEC having substantially the same effect as such
Rule.
“Rule 415” means
Rule 415 promulgated by the SEC 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 SEC having substantially the same effect as
such Rule.
“Rule 424” means
Rule 424 promulgated by the SEC 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 SEC having substantially the same effect as
such Rule.
“SEC” means the U.S. Securities
and Exchange Commission.
“Securities Act” means the
Securities Act of 1933, as amended.
“Selling Shareholder
Questionnaire” is defined in Section
2(e).
“Trading Day” means (i) a day
on which Common Stock is traded or quoted on a Trading Market, or (ii) if Common
Stock is not traded or quoted on a Trading Market, a day on which Common Stock
is quoted in the over-the-counter market as reported by the National Quotation
Bureau Incorporated (or any similar organization or agency succeeding to its
functions of reporting price); provided, that in the event that Common Stock is
not traded or quoted as set forth in (i), and (ii) hereof, that Trading Day
shall mean a Business Day.
“Trading Market” means the
following markets or exchanges on which Common Stock is listed or quoted for
trading on the date in question: the NASDAQ Capital Market, the American Stock
Exchange, the New York Stock Exchange, the NASDAQ Global Market, the NASDAQ
Global Select Market or the OTC Bulletin Board.
2. Registration.
(a) Required
Registration. No later than the Filing Date, the Company shall
prepare and file with the SEC the Registration Statement covering the resale of
all of the Registrable Securities which a Holder has requested to be included in
such Registration Statement (subject to the proviso set forth in the definition
of “Registrable Securities” above) and for which such Holder has provided the
Company with a completed Selling Shareholder Questionnaire, which offering shall
be made on a continuous basis pursuant to Rule 415. The Registration
Statement shall be on Form S-1 (or other applicable form at the discretion of
the Company). The Registration Statement shall contain (except if otherwise
directed by the Holders) the “Plan of Distribution”
substantially in the form attached hereto as Annex A (which may be modified
as required by the Securities Act and the rules and regulations thereunder and
to respond to comments, if any, received from the SEC). The Company
shall cause the Registration Statement to be declared effective under the
Securities Act prior to the Effectiveness Date and shall use its commercially
reasonable efforts to keep the Registration Statement continuously effective
under the Securities Act until the date when all Registrable Securities covered
by the Registration Statement (a) have been sold pursuant to the Registration
Statement or an exemption from the registration requirements of the Securities
Act or (b) may be sold without any volume or manner of sale restrictions
pursuant to Rule 144 (the “Effectiveness
Period”).
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(b) Liquidated
Damages. If:
(i) the Registration Statement is not filed on or prior to the Filing Date, or
(ii) the Company fails to file with the SEC a request for acceleration of the
Registration Statement in accordance with Rule 461 promulgated by the SEC
pursuant to the Securities Act, within five (5) Trading Days of the date that
the Company is notified (orally or in writing, whichever is earlier) by the SEC
that the Registration Statement will not be “reviewed” or will not be subject to
further review, or (iii) prior to the effective date of the Registration
Statement, the Company fails to file a pre-effective amendment and otherwise
respond in writing to comments made by the SEC in respect of the Registration
Statement within twenty (20) Trading Days after the receipt of comments by or
notice from the SEC that such amendment is required in order for the
Registration Statement to be declared effective, or (iv) the Registration
Statement is not declared effective by the SEC by the Effectiveness
Date, (any such failure or breach being referred to as an “Event”, and for purposes of
clauses (i) and (iv) the date on which such Event occurs, and for purpose of
clause (ii) the date on which such five (5) Trading Day period is exceeded, and
for purpose of clause (iii) the date which such twenty (20) Trading Day period
is 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 or Common Stock, or a combination thereof, as partial liquidated damages
and not as a penalty, equal to 2% of the aggregate purchase price paid by such
Holder pursuant to the Subscription Agreement for any unregistered Registrable
Securities then held by such Holder, which amount shall be payable on the first
monthly anniversary of each such Event Date (on a pro rata basis for partial
months) and each monthly anniversary thereafter (if the applicable Event shall
not have been cured by such date). The number of shares of Common
Stock issuable in lieu of cash hereunder shall be equal to A divided by B, in
which A equals the dollar amount of accrued and payable partial liquidated
damages to be paid in shares of Common Stock and B equals either (i) the average
of the closing price on the Trading Market for the ten (10) Trading Days
immediately preceding the date of payment of such partial liquidated damages or
(ii) should there be no relevant Trading Market, the fair market value of a
share of Common Stock as determined by the Board of Directors of the
Company. The decision whether to pay partial liquidated damages
hereunder in shares of Common Stock or cash shall be at the discretion of the
Company; provided, however, that the Company may only elect to issue shares of
Common Stock pursuant to this Section if such shares will be Registrable
Securities. Except as otherwise provided herein, if at any time the Company pays
partial liquidated damages partially in cash and partially in shares of Common
Stock, then such payment shall be distributed ratably among the Holders based
upon the Subscription Amount paid by each Holder. The parties agree
that liquidated damages shall cease to accrue on the eighth (8th) month
anniversary of the Event Date.
(c) Sufficient Number of Shares
Registered. In the event the number
of shares of Common Stock covered under a Registration Statement filed pursuant
to Section 2(a) is
insufficient to cover all of the Registrable Securities which such Registration
Statement is required to cover (subject to the proviso set forth in the
definition of “Registrable Securities” above), the Company shall use its best
efforts to amend the Registration Statement, or file a new Registration
Statement, or both, so as to cover at least 100% of the Registrable Securities,
in each case, as soon as practicable. The Company shall use its
commercially reasonable efforts to cause such amendment and/or new Registration
Statement to become effective as soon as practicable following the filing
thereof.
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(d) Participation in
Underwritten Registrations. No Holder may participate in any
underwritten registration with respect to the Registrable Securities unless such
Holder completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
reasonably required under the terms of such underwriting
agreements.
(e) Other
Requirements. In connection with any Registration Statement
under Section
2(a), Holders whose Registrable Securities are included therein shall
provide such information and shall execute and deliver to the Company such
documents, including, but not limited to, a selling shareholder questionnaire in
customary form and substance reasonably satisfactory to the Company (“Selling Shareholder
Questionnaire”), as the Company may reasonably request in order to effect
such registration pursuant to this Agreement and in accordance with applicable
securities laws.
(f) 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 S-4 or Form S-8 (each as promulgated under the
Securities Act) or their then equivalents relating to equity securities to be
issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with 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 (15) 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, subject to customary underwriter cutbacks
applicable to all holders of registration rights on a pro rata basis, provided that if at
any time after giving written notice of its intention to register any securities
and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
not to register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination to such Holder and,
thereupon, (i) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay expenses in accordance with
Section 4 hereof), and (ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Registrable Securities being
registered pursuant to this Section for the same period as the delay in
registering such other securities. Notwithstanding the foregoing, the
Company shall not be required to register any Registrable Securities pursuant to
this Section that are eligible for resale pursuant to Rule 144(b) promulgated
under the Securities Act or that are the subject of a then effective
Registration Statement. Notwithstanding the foregoing, nothing herein
shall be construed of relieving the Company of its obligations under this
Agreement.
3. Registration
Procedures. In connection with the Company’s registration
obligations hereunder, the Company shall use commercially reasonable efforts
to:
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(a) Not
less than three (3) Trading Days prior to the filing of the Registration
Statement or of any related Prospectus or any amendment or supplement thereto,
(i) furnish to the Holders’ Representative copies of all such documents
substantially in the form proposed to be filed (including documents incorporated
or deemed incorporated by reference to the extent requested by such Person)
which documents will be subject to the review of the Holders’ Representative,
and (ii) subject, if appropriate, to the execution of confidentiality agreements
in form acceptable to the Company, 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.
(b) (i)
Prepare and file with the SEC such amendments, including post-effective
amendments, to the Registration Statement and the Prospectus 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; (ii) cause the related Prospectus to be amended or supplemented by any
required Prospectus supplement, and as so supplemented or amended to be filed
pursuant to Rule 424; and (iii) respond as promptly as reasonably
practicable to any comments received from the SEC with respect to the
Registration Statement or any amendment thereto and, as promptly as reasonably
practicable, upon request, provide the Holders’ Representative true and complete
copies of all correspondence from and to the SEC relating to the Registration
Statement (subject, if appropriate, to the execution of confidentiality
agreements in form acceptable to the Company).
(c) Notify
the Holders of Registrable Securities to be sold as promptly as reasonably
possible (and, in the case of (i)(A) below, not less than three (3) Trading Days
prior to such filing) and (if requested by any such Person) confirm such notice
in writing promptly 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 SEC notifies the Company whether there will be a
“review” of the Registration Statement and whenever the SEC comments in writing
on the Registration Statement (the Company shall upon request provide true and
complete copies thereof and all written responses thereto to the Holders’
Representative, subject, if appropriate, to the execution of confidentiality
agreements in form acceptable to the Company); 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 SEC or any other federal or state
governmental authority during the period of effectiveness of the
Registration Statement for amendments or supplements to the Registration
Statement or Prospectus or for additional information; (iii) of the issuance by
the SEC 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; and (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.
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(d) Avoid
the issuance of, or, if issued, obtain the withdrawal of (i) any order
suspending the effectiveness of the Registration Statement, or (ii) any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest practicable
moment.
(e) Promptly
deliver to each Holder no later than five (5) business days after the
Effectiveness Date, without charge, two (2) copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto (and, upon the request of the Holder such additional copies
as such Persons may reasonably request in connection with resales by the Holder
of Registrable Securities). 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(c)(ii)-(v).
(f) 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 as any Holder reasonably requests in writing, to keep such
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, however, 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.
(g) 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 Subscription
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.
(h) Upon
the occurrence of any event contemplated by Section 3(c), 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 and file a
supplement or amendment, including a post-effective amendment, to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file any
other required document so that, as thereafter delivered, neither the
Registration Statement nor such Prospectus will contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Company will use, in good faith, its
commercially reasonable best efforts to ensure that the use of the Prospectus
may be resumed as promptly as is practicable. In accordance with the
provisions of Section 6(o), the Company shall be entitled to exercise its right
under this Section 3(h) to suspend the availability of a Registration Statement
and Prospectus.
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(i) Comply
in all material respects with all applicable rules and regulations of the
SEC relating to the registration of the Registrable Securities pursuant to the
Registration Statement or otherwise.
(j) The
Company shall not be required to include in any Registration Statement the
Registrable Securities of any Holder that does not complete a Selling
Shareholder Questionnaire.
(k) Make
all documents, files, books, records, officers, directors and employees of the
Company reasonably available to the Holders’ Representative, one legal counsel
to the Holders and one firm of accountants retained by the Holders
(collectively, the “Inspectors”), and make such
other accommodations as are reasonably necessary for the Inspectors, if any, to
perform a due diligence review of the Company; provided, however, that all
such information (“Confidential Information”) will be kept
confidential and not utilized by the Inspectors except as contemplated herein
and except as required by law or court order. The term Confidential
Information also includes any information included in a draft Registration
Statement or any related Prospectus or any amendment or supplement thereto
provided to a Holder pursuant to Section 3(a); for the
avoidance of doubt, however, the Company shall not furnish to Holders, without
their prior approval, any information that constitutes or might constitute
material, non-public information. The term Confidential Information
does not include information that (a) is already in possession of such
other party (other than that which is subject to another confidentiality
agreement or unless obtained from a third party where the receiving party knows
that the third party was subject to a confidentiality agreement),
(b) becomes generally available to the public other than by disclosure in
violation of this Agreement or any other agreement to which a Holder is a party,
or (c) becomes available on a non-confidential basis from a source other
than the Company unless obtained from a third party where the receiving party
knows that the third party was subject to a confidentiality
agreement. Each Holder agrees that it shall, upon learning that
disclosure of such Confidential Information is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt
notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, the information deemed confidential.
(l) Hold
in confidence and not make any disclosure of information concerning any Holder
provided to the Company unless (a) such information is already in possession of
the Company, (b) such information becomes available to the Company on a
non-confidential basis from a person other than such Holder who is not known by
the Company to be otherwise bound by a confidentiality or comparable agreement
with such Holder, (c) disclosure of such information is necessary to comply
with federal or state securities laws, (d) the disclosure of such
information is necessary to avoid or correct a misstatement or omission in any
Registration Statement or Prospectus, (e) the release of such information
is ordered pursuant to a subpoena or other final, non-appealable order from a
court or governmental body of competent jurisdiction, (f) such information
has been made generally available to the public other than by disclosure in
violation of this Agreement or any other agreement to which the Company is a
party, or (g) such Holder consents to the form and content of any such
disclosure (the Holders shall be deemed to consent to the inclusion of any
information provided in the Selling Shareholder Questionnaire, in the
Registration Statement, any Prospectus related thereto, and any amendments or
supplements thereto). The Company agrees that it shall, upon learning
that disclosure of such information concerning any Holder is sought in or by a
court or governmental body of competent jurisdiction or through other means,
give prompt written notice to such Holder and allow such Holder, at the Holder’s
expense, to undertake appropriate action to prevent disclosure of, or to obtain
a protective order for, such information.
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(m) File
the reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the SEC thereunder so long as the
Holders own any Registrable Securities, but in no event longer than two (2)
years; provided, however, the Company
may delay any such filing but only pursuant to Rule 12b-25 under the
Exchange Act, and the Company shall use commercially reasonable efforts to take
such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144 under
the Securities Act, or (b) any similar rule or regulation hereafter adopted
by the SEC. Upon the request of any Holder of Registrable Securities, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
4. Registration
Expenses. All fees and expenses incident to the performance of
or compliance with this Agreement by the Company (including, without limitation,
fees and expenses of one counsel for the Holders’ Representative with respect to
the review of the Registration Statement, “Holders’ Representative Counsel”)
shall be borne by the Company whether or not any Registrable Securities are sold
pursuant to the Registration Statement, other than fees and expenses of counsel
(other than the Holder’s Representative Counsel referenced above) or any other
advisor retained by the Holders and discounts, fees and commissions with respect
to the sale of any Registrable Securities by the Holders. The fees and expenses
to referred to in the foregoing sentence to be borne by the Company 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 Common Stock is then listed for trading,
and (B) to effect compliance with applicable state securities or Blue Sky laws),
(ii) printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities and of printing Prospectuses), (iii)
fees and disbursements of counsel for the Company, (iv) Securities Act liability
insurance, if the Company so desires such insurance, and (v) 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 or other
trading market as required hereunder.
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5. Indemnification
(a) Indemnification by the
Company. The Company shall, notwithstanding any termination of this
Agreement, indemnify and hold harmless each Holder, the officers, directors,
agents and employees of each of them, each Person who controls any such Holder
(within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) and the officers, directors, agents and employees of each
such controlling Person, to the fullest extent permitted by applicable law,
from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable attorneys’ fees) and expenses
(including the cost (including without limitation, reasonable attorneys’ fees)
and expenses relating to an Indemnified Party’s actions to enforce the
provisions of this Section 5)
(collectively, “Losses”), as incurred, to the
extent arising out of or relating to 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 (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 (1) such
untrue (or alleged untrue) statements or omissions (or alleged omissions) are
based solely upon information regarding such Holder furnished (or in the case of
an omission, results from the failure of such Holder to fully or accurately
complete the Selling Shareholder Questionnaire) in writing to the Company by or
on behalf of 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 which proposed method was reviewed 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 reviewed Annex A hereto for this
purpose), (2) in the case of an occurrence of an event of the type specified in
Section 3(c)(ii)-(v),
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(c), or
(3) the failure of the Holder to deliver a Prospectus as amended or supplemented
prior to the confirmation of a sale. The Company shall notify the
Holders promptly of the institution, threat or assertion of any Proceeding of
which the Company is aware in connection with the transactions contemplated by
this Agreement.
(b) Indemnification by
Holders. Each Holder shall, severally and not jointly, indemnify and hold
harmless the Company, 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 arising out of or based 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 (in
the case of the Prospectus or form of prospectus or supplement thereto, in light
of the circumstances under which they were made) not misleading (i) to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is contained in any information so
furnished (or in the case of an omission, results from the failure of such
Holder to fully or accurately complete the Selling Shareholder Questionnaire) in
writing by or on behalf of such Holder to the Company specifically for inclusion
in the Registration Statement or such Prospectus or (ii) to the extent that (1)
such untrue statements or omissions are based solely upon information
regarding such Holder furnished (or in the case of an omission, results from the
failure of such Holder to fully or accurately complete the Selling Shareholder
Questionnaire) in writing to the Company by or on behalf of 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 which proposed method was reviewed by such Holder expressly for
use in the Registration Statement (it being understood that the Holder has
reviewed 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(c)(ii)-(v),
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(c), or
(3) the failure of the Holder to deliver a Prospectus as amended or supplemented
prior to the confirmation of a sale. In no event shall the liability of any
selling Holder hereunder be greater in amount than the gross proceeds received
by the Holder with respect to the sale of its Registrable Securities giving rise
to such indemnification obligation.
10
(c) Conduct of Indemnification
Proceedings. If any Proceeding shall be brought or asserted against any
Person entitled to indemnity hereunder (an “Indemnified Party”), such
Indemnified Party 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 such failure shall have materially
prejudiced the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in (but not control) 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 to assume
the defense of such Proceeding in a timely manner 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 such
Indemnified Party shall have been advised by counsel in writing that a conflict
of interest would 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 for all Indemnified Parties in any matters
related on a factual basis shall be at the expense of the Indemnifying Party).
The Indemnifying Party shall not be liable for any settlement of any such
Proceeding affected without its written consent, not to be unreasonably
withheld. 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.
11
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 fifteen
(15) Business 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.
(d) Contribution. If a
claim for indemnification under Section 5(a) or
Section 5(b) is
unavailable to an Indemnified Party (by reason of public policy or otherwise),
then each Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such Losses, in such proportion as is 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 Section 5(c),
any reasonable attorneys’ or other reasonable fees or expenses incurred by such
party in connection with any Proceeding to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in
this Section was available to such party in accordance with its
terms.
(e) The
parties hereto agree that it would not be just and equitable if contribution
pursuant to 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 Section
5(d). Notwithstanding the provisions of Section 5(d), no
Holder shall be required to indemnify or contribute, in the aggregate, pursuant
to this Article
5, 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. No party guilty of fraudulent misrepresentation
pursuant to Section 11(f) of the Securities Act shall be entitled to
contribution from any other party.
12
6. Miscellaneous.
(a) Remedies. In
the event of a breach by the Company or by a Holder of any of their obligations
under this Agreement, each Holder or the Company, as the case may be, in
addition to being entitled to exercise all rights granted by law and under this
Agreement will be entitled to specific performance of its rights under this
Agreement. The Company and each Holder agree that monetary damages
would not provide adequate compensation for any losses incurred by reason of a
breach by it of any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific performance in respect of
such breach, it shall waive the defense that a remedy at law would be
adequate.
(b) 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.
(c) 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(c)(ii)-(v),
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 may provide appropriate stop orders to enforce
the provisions of this paragraph.
(d) Amendments and
Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
same shall be in writing and signed by the Company and the Holders of at least
sixty-six percent (66%) of the then outstanding Registrable Securities (assuming
the exercise of all Warrants and conversion of the Preferred Shares, regardless
of whether such securities have been exercised or converted), whereupon such
amendment, modification, supplement or waiver shall be binding on all Holders;
provided, however, that no
consideration shall be offered or paid to any Holder to amend or consent to a
waiver or modification of any provision of this Agreement unless the same
consideration (on a pro-rata basis) is also offered to all of the Holders under
this Agreement.
(e) Notices. All notices
that are required or may be given pursuant to this Agreement must be in writing
and delivered personally, by a recognized courier service, by a recognized
overnight delivery service, or by registered or certified mail, postage prepaid,
to the parties at the following addresses (or to the attention of
such other person or such other address as any party may provide to the
other parties by notice in accordance with this section):
13
If to the
Company:
SignPath
Pharma Inc.
0000
Xxxxxxxxxx Xxxx
Xxxxxxxxxx,
Xxxxxxxxxxxx 00000
Attention:
Xx. Xxxxxxxx Xxxxxx
Tel:
(000) 000-0000
Email:
xxxxxxx@xxxxxxxxxxxxxx.xxx
With a
copy to:
Xxxxxxxx
Xxxxx LLP
000 Xxxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxxx, Esq.
Telephone:
(000) 000-0000
If to a
Purchaser:
At the
address indicated on the signature page for such Purchaser
Any such
notice or other communication will be deemed to have been given and received
(whether actually received or not) on the day it is personally delivered or
delivered by courier or overnight delivery service or, if mailed, when actually
received.
(f) Successors and
Assigns. This Agreement shall inure to the benefit of and be binding upon
each of the parties and their respective successors and permitted assigns.
(g) 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.
(h) Governing Law. This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Delaware without regard to the conflicts of laws principles
thereof. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to principles of conflicts of
laws. All actions arising out of or relating to this Agreement shall
be heard and determined exclusively in any New York federal court sitting in the
Borough of Manhattan of The City of New York; provided, however, that if such
federal court does not have jurisdiction over such action, such action shall be
heard and determined exclusively in any New York state court sitting in the
Borough of Manhattan of The City of New York. Consistent with the
preceding sentence, the parties hereto hereby (a) submit to the exclusive
jurisdiction of any federal or state court sitting in the Borough of Manhattan
of The City of New York for the purpose of any action arising out of or relating
to this Agreement brought by any party hereto and (b) irrevocably waive,
and agree not to assert by way of motion, defense, or otherwise, in any such
action, any claim that it is not subject personally to the jurisdiction of the
above-named courts, that its property is exempt or immune from attachment or
execution, that the action is brought in an inconvenient forum, that the venue
of the action is improper, or that this Agreement or the transactions
contemplated by this Agreement may not be enforced in or by any of the
above-named courts.
14
(i) Waiver of Jury
Trial EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 6(i).
(j) Cumulative
Remedies. Subject to the first sentence of Section 6(a), the
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(k) 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 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.
(l) Interpretation. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof. References to Sections
mean Sections of this Agreement unless otherwise stated. Any term
defined in this Agreement shall be deemed to include derivations of such term
(e.g., the term “Indemnified Party” shall include “Indemnified
Parties”).
(m) Independent Nature of
Purchasers’ Obligations and
Rights. The obligations of each Purchaser hereunder is several and not
joint with the obligations of any other Purchaser hereunder, and no Purchaser
shall be responsible in any way for the performance of the obligations of any
other Purchaser hereunder. Nothing contained herein or in any other
agreement or document delivered at any closing, and no action taken by any
Purchaser pursuant hereto or thereto, shall be deemed to constitute the
Purchasers as a partnership, an association, a joint venture or any other kind
of entity, or create a presumption that the Purchasers are in any way acting in
concert with respect to such obligations or the transactions contemplated by
this Agreement. Each Purchaser shall be entitled to independently protect and
enforce its rights, including without limitation the rights arising out of
this Agreement, and it shall not be necessary for any other Purchaser to be
joined as an additional party in any proceeding for such
purpose. EACH PURCHASER REPRESENTS THAT IS HAS BEEN REPRESENTED BY
ITS OWN SEPARATE LEGAL COUNSEL IN ITS REVIEW AND NEGOTIATION OF THIS
AGREEMENT. The Company has elected to provide all Purchasers with the
same terms and documents for the convenience of the Company and not because it
was required to do so by the Purchasers.
15
(n) Assignment of Registration
Rights. The rights of any Holder under this Agreement shall be
automatically assignable by such Holder to any transferee of all or any portion
of Registrable Securities (other than pursuant to a public sale or Rule 144) if:
(1) such Holder agrees in writing with the transferee or assignee to assign
such rights, and a copy of such agreement is furnished to the Company promptly
after such assignment; (2) the Company is, promptly after such transfer or
assignment, furnished with written notice of (i) the name and address of
such transferee or assignee, and (ii) the securities with respect to which
such registration rights are being transferred or assigned; and (3) at or
before the time the Company receives the written notice contemplated by
clause (2) of this sentence the transferee or assignee agrees in writing
with the Company to be bound by all of the provisions contained
herein.
(o) Deferral
Period. With respect to any Registration Statement filed or to
be filed pursuant to Section 2, if the
Company determines that, in its good faith judgment, it would (because of the
existence of, or in reasonable anticipation of, any acquisition or corporate
reorganization or other transaction, financing activity, stock repurchase or
other material development involving the Company or any subsidiary, or the
unavailability for reasons beyond the Company’s control of any required
financial statements or other material information, or any other event or
condition material to the Company or any subsidiary) be materially
disadvantageous to the Company to proceed with such Registration Statement or
that the Company is required by applicable law, rules or regulations not to
proceed with the Registration Statement or to suspend its effectiveness (a
“Material Development
Condition”), then the Company shall, notwithstanding any other provisions
of this Agreement, be entitled, upon the giving of a written notice that a
Material Development Condition has occurred (a “Delay Notice”) from an officer
of the Company to the Holders’ Representative, as the representative of the
Purchasers, (i) to cause sales of Registrable Securities by the Purchasers
pursuant to such Registration Statement to cease, (ii) to cause such
Registration Statement to be withdrawn and the effectiveness of such
Registration Statement suspended, or (iii) in the event no such Registration
Statement has yet been filed or declared effective, to delay filing or
effectiveness of any such Registration Statement until, in the good faith
judgment of the Company, such Material Development Condition shall be disclosed
or no longer exists (notice of which the Company shall promptly deliver to the
Holders’ Representative, as the representative of the
Purchasers). Notwithstanding the foregoing provisions of this Section 6(o), in the
event a Registration Statement is filed and subsequently withdrawn by reason of
any existing or anticipated Material Development Condition as provided above,
the Company shall use commercially reasonable efforts to cause a new
Registration Statement covering the Registrable Securities to be filed with the
SEC as soon as reasonably practicable, but no later than the expiration of
ninety (90) days from the Delay Notice.
16
(p) Entire
Agreement. This Agreement, any annexes hereto and any writings
incorporated herein by reference set forth the entire understanding of the
parties hereto with respect to the subject matter hereof. The recitals hereto
are a material part of this Agreement and are incorporated in this Agreement by
reference as if fully set forth herein.
(q) No Piggyback on
Registrations. Neither the Company nor any of its security
holders (other than the Holders in such capacity pursuant hereto) may include
securities of the Company in the initial Registration Statement other than the
Registrable Securities, and the Company shall not, during the period beginning
on the date hereof and ending on the Trading Day immediately following the
actual effective date of such initial Registration Statement, enter into any
agreement providing any such right to any of its security holders.
Notwithstanding the foregoing, however, the Company may grant piggyback
registration rights to third parties during the aforementioned period; provided, however, that such
rights would expressly exclude the initial Registration Statement contemplated
by this Agreement. The Company shall not file any other registration statements
until the initial Registration Statement required hereunder is declared
effective by the Commission.
(r) No Inconsistent
Agreements. The Company has entered, as of the date hereof, nor shall the
Company, 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 disclosed in the Offering Documents,
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.
[Signatures
follow]
17
IN WITNESS WHEREOF, the
parties have executed this Registration Rights Agreement as of the date first
written above.
|
SIGNPATH
PHARMA INC.
|
|||
|
By:
|
|||
|
Xx.
Xxxxxxxx Xxxxxx,
|
|||
|
|
Chief
Executive Officer
|
||
(SUBSCRIBER’S
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT)
Name of
Subscriber: ______________________________________________________
Name of
Authorized Signatory (if different from
Subscriber):_______________________
Title of
Authorized Signatory:
_______________________________________________
Signature of Authorized Signatory or
Subscriber:________________________________
EIN or
Social Security Number:
_____________________________________________
Email
Address of
Subscriber:_________________________________________________
Facsimile
Number of Subscriber:______________________________________________
Address
for Notice to Subscriber:
ANNEX A
Plan of
Distribution
The
Selling Stockholders and any of their pledgees, donees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of common stock on any 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. The Selling Stockholders may use any one or more of the
following methods when selling shares:
|
|
·
|
ordinary
brokerage transactions and transactions in which the broker/dealer
solicits purchasers;
|
|
|
·
|
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;
|
|
|
·
|
purchases
by a broker/dealer as principal and resale by the broker/dealer for its
account;
|
|
|
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
|
|
|
·
|
privately
negotiated transactions;
|
|
|
·
|
put
or call options transactions;
|
|
|
|
|
·
|
settlement
of short sales;
|
|
|
|
|
·
|
broker/dealers
may agree with the Selling Stockholders to sell a specified number of such
shares at a stipulated price per
share;
|
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|
|
·
|
a
combination of any such methods of sale;
and
|
|
|
|
|
·
|
any
other method permitted by applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the
Securities Act of 1933, 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 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. The Selling
Stockholders do not expect these commissions to exceed what is customary in the
types of transactions involved.
The
Selling Stockholders may from time to time pledge or grant a security interest
in some or all of the shares of common stock owned by them and, if they default
in the performance of their secured obligations, the donees, pledgees or secured
parties may offer and sell the shares of common stock from time to time under
this prospectus, or under an amendment to this prospectus under
Rule 424(b)(3) or other applicable provision of the Securities Act of 1933
amending the list of Selling Stockholders to include the donee, pledgee,
transferee or other successors in interest as Selling Stockholders under this
prospectus.
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 under the
Securities Act of 1933. The Selling Stockholders have informed the Company that
they do not have any agreement or understanding, directly or indirectly, with
any person to distribute common stock.
At the
time a particular offering of securities is made, to the extent required, a
prospectus supplement will be distributed which will set forth the number of
securities being offered and the terms of the offering, including the purchase
price or the public offering price, the name or names of any underwriters,
dealers or agents, the purchase price paid by any underwriters for securities
purchased from the Selling Stockholders, any discounts, commissions and other
items constituting compensation from the selling security holders and any
discounts, commissions or concessions allowed or reallowed or paid to
dealers.
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 this
prospectus which qualify for sale pursuant to Rule 144 under the Securities Act
may be sold under Rule 144 rather than under this prospectus. There
is no underwriter or coordinating broker acting in connection with the proposed
sale of the resale shares by the Selling Stockholders.
We agreed
to keep this 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 under the
Securities Act or any other rule of similar effect or (ii) all of the shares
have been sold pursuant to this prospectus or Rule 144 under the Securities Act
or any other rule of similar effect. The resale shares will be sold
only through registered or licensed brokers or dealers if required under
applicable state securities laws. In addition, in certain states, the resale
shares may not be sold unless they have 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.
Pursuant
to applicable rules and regulations under the Securities Exchange Act of 1934,
any person engaged in the distribution of the securities offered under this
prospectus may not simultaneously engage in market activities for the shares of
common stock for a period of five business days prior to the commencement of
such distribution. In addition, each Selling Stockholder and any
other person who participates in a distribution of the securities will be
subject to applicable provisions of the Securities Exchange Act of 1934 and the
rules and regulations thereunder, including Regulation M, which may limit the
timing of purchases and may affect the marketability of the securities and the
ability of any person to engage in market activities for the shares of common
stock.
The
Company is required to pay all fees and expenses 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 of 1933.
