REGISTRATION RIGHTS AGREEMENT
EXHIBIT
10.2
This
Registration Rights Agreement (this "Agreement") is made and
entered into as of September 10, 2008, by and among SinoHub, Inc., a Delaware
corporation (the "Company"), and the investors
signatory hereto (each an "Investor" and collectively,
the "Investors").
This
Agreement is made in connection with the Securities Purchase Agreement, dated as
of the date hereof among the Company and the Investors (the "Purchase
Agreement").
The
Company and the Investors hereby agree as follows:
1.
Definitions. Capitalized
terms used and not otherwise defined herein that are defined in the Purchase
Agreement will have the respective meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms have the
respective meanings set forth in this Section 1:
“Advice” has the meaning set
forth in Section 7(e).
“Allowed Delay” has the meaning
set forth in Section 3(j).
“Board” has the meaning set
forth in Section 3(j).
"Commission Comments" means written comments pertaining solely to Rule
415 which are received by the Company from
the Commission to a filed Registration
Statement, a copy of which shall have been
provided by the Company to the Investors, which
either (i) requires the Company to limit the number of
Registrable Securities which may be included therein to a number which is less
than the number sought to be included thereon as filed with the
Commission or (ii) requires the Company to either exclude Registrable Securities held by specified Investors or
deem such Investors to be
underwriters with respect to Registrable Securities they seek to include in such Registration
Statement.
“Cut Back Shares” has the
meaning set forth in Section 2(b).
"Effective Date" means,
subject to Section 2(b) hereof, with respect to the Registration Statement the
earlier of (A) the ninetieth (90th) day
following the Closing Date (or in the event the Commission reviews the
Registration Statement, the one hundred twentieth (120th) day
following the Closing Date) or (B) the date which is within five (5)
Business Days after the date on which the Commission informs the Company (i)
that the Commission will not review the Registration Statement or (ii) that the Company may
request the acceleration of the effectiveness of the Registration Statement and
the Company makes such request; provided that, if the Effective Date falls on a
Saturday, Sunday or any other day which shall be a legal holiday or a day on
which the Commission is authorized or required by law or other government
actions to close, the Effective Date shall be the following Business
Day.
"Effectiveness Period" means,
as to any Registration Statement required to be filed pursuant to this
Agreement, the period commencing on the Effective Date of such Registration
Statement and ending on the earliest to occur of (a) such time as all of the
Registrable Securities covered by such Registration Statement have been publicly
sold by the Investors of the Registrable
Securities included therein, or (b) such time as all of the Registrable
Securities covered by such Registration Statement may be sold by the Investors without volume restrictions pursuant to
Rule 144, in each case as determined by the counsel to the Company.
“Event” has the meaning set
forth in Section 7(g).
“Event Date” has the meaning
set forth in Section 7(g).
"Exchange Act" means the
Securities Exchange Act of 1934, as amended.
“Filing Date” means, subject to
Section 2(b) hereof, the 45th day
following the Closing Date; provided that, if the Filing Date falls on a
Saturday, Sunday or any other day which shall be a legal holiday or a day on
which the Commission is authorized or required by law or other government
actions to close, the Filing Date shall be the following Business
Day.
"Holder" or "Holders" means the holder or
holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified Party” has the
meaning set forth in Section 5(c).
“Indemnifying Party” has the
meaning set forth in Section 5(c).
“Losses” has the meaning set
forth in Section 5(a).
"Proceeding" means an action,
claim, suit, investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether commenced or
threatened.
“Prospectus” means the
prospectus included in a 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 a 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, (ii) the Warrant Shares and (iii) any
securities issued or issuable upon any stock split, dividend or other
distribution, recapitalization or similar event, or any price adjustment as a
result of such stock splits, reverse stock splits or similar events with respect
to any of the securities referenced in (i) or (ii)
above. Notwithstanding the foregoing, a security shall cease to be a
Registrable Security for purposes of this Agreement from and after such time as
the Holder of such security may resell such security without volume restrictions
under Rule 144, as evidence by an opinion of counsel reasonably acceptable to
the Company.
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"Registration Statement" means
the initial registration statement required to be filed in accordance with
Section 2(a) and any additional registration statements required to be filed
under this Agreement, including in each case the Prospectus, amendments and
supplements to such registration statements or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference therein.
“Restriction Termination Date”
has the meaning set forth in Section 2(b).
"Rule 144" means Rule 144
promulgated by the Commission pursuant to the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
"Rule 415" means Rule 415
promulgated by the Commission pursuant to the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
"Rule 424" means Rule 424
promulgated by the Commission pursuant to the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
“SEC Restrictions” has the
meaning set forth in Section 2(b).
"Securities Act" means the
Securities Act of 1933, as amended.
"Shares" means the shares of
Common Stock issued or issuable to the Investors pursuant to the Purchase
Agreement.
“Warrants” means the Common
Stock purchase warrants issuable to the Investors at the Closing pursuant to the
Purchase Agreement.
“Warrant Shares” means the
shares of Common Stock issuable upon exercise of the Warrants.
2. Registration.
(a)
On or prior to the Filing Date, the Company shall prepare and file with the
Commission a Registration Statement covering the resale of all Registrable
Securities not already covered by an existing and effective Registration
Statement for an offering to be made on a continuous basis pursuant to Rule
415. Each Registration Statement required to be filed under this
Agreement shall be filed on Form S-1 (or the Company may utilize such other
available form appropriate for such purpose,) and contain (except if otherwise
required pursuant to written comments received from the Commission upon a review
of such Registration Statement, other than as to the characterization of any
Holder as an underwriter, which shall not occur without such Holder’s written
consent) the "Plan of Distribution" attached hereto as Annex
A. With respect to the initial Registration Statement, the
Company shall not permit any securities other than the Registrable Securities to
be included in such Registration Statement. Each Registration
Statement shall cover to the extent allowable under the
Securities Act and the rules promulgated thereunder (including Rule 416), such
indeterminate number of additional shares of Common Stock resulting from stock
splits, stock dividends or similar transactions with respect to the Registrable
Securities. The
Company shall cause each Registration Statement required to be filed under this
Agreement to be declared effective under the Securities Act as soon as possible,
but in any case not later than 120 days after filing (except that the initial
Registration Statement shall be declared effective by not later than the
Effective Date), and shall keep each such Registration Statement continuously
effective during its entire Effectiveness Period. If for any reason
other than due solely to SEC Restrictions, a Registration Statement is effective
but not all outstanding Registrable Securities are registered for resale
pursuant thereto, then the Company shall within 20 business days prepare and
file an additional Registration Statement to register the resale of all such
unregistered Registrable Securities for an offering to be made on a continuous
basis pursuant to Rule 415.
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(b)
Notwithstanding anything to the contrary contained in this Section 2, if the
Company receives Commission Comments, and following discussions with and
responses to the Commission in which the Company uses its reasonable best
efforts and time to cause as many Registrable Securities for as many Holders as
possible to be included in the Registration Statement filed pursuant to Section
2(a) without characterizing any Holder as an underwriter, the Company is unable
to cause the inclusion of all Registrable Securities, then the Company may,
following not less than three (3) Trading Days prior written notice to the
Holders (i) remove from the Registration Statement such Registrable Securities
(the “Cut Back Shares”)
and/or (ii) agree to such restrictions and limitations on the registration and
resale of the Registrable Securities, in each case as the Commission may require
in order for the Commission to allow such Registration Statement to become
effective; provided, that in no
event may the Company name any Holder as an underwriter without such Holder’s
prior written consent (collectively, the “SEC
Restrictions”). Unless the SEC Restrictions otherwise require,
any cut-back imposed pursuant to this Section 2(b) shall be allocated among the
Registrable Securities of the Holders on a pro rata basis. The
required Effective Date for such Registration Statement will be tolled, until
such time as the Company is able to effect the registration of the Cut Back
Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination
Date”). From and after the Restriction Termination Date, all
provisions of this Section 2 shall again be applicable to the Cut Back Shares
(which, for avoidance of doubt, retain their character as “Registrable
Securities”) so that the Company will be required to file with and cause to be
declared effective by the Commission such additional Registration Statements as
necessary to ultimately cause to be covered by effective Registration Statements
all Registrable Securities (if such Registrable Securities cannot at such time
be resold by the Holders thereof without volume limitations pursuant to Rule
144). The Registrable Securities to be included in
any such Registration Statement or any subsequent registration statement shall
be determined in the following order: (i) first, Shares shall be registered on a pro rata basis among the Holders,
and (ii) second, the Warrant Shares shall be registered on a pro rata basis
among the Holders.
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(c)
Each Holder agrees to furnish to the Company a completed Questionnaire in the
form attached to this Agreement as Annex B (a “Selling Holder
Questionnaire”). The Company shall not be required to include
the Registrable Securities of a Holder in a Registration
Statement to any Holder who fails to furnish to the Company a fully completed
Selling Holder Questionnaire at least two Trading Days prior to the filing
date.
In
connection with the Company's registration obligations hereunder, the Company
shall:
(a)
The Company shall not file a Registration Statement, any Prospectus or any
amendments or supplements thereto in which the “Selling Stockholder” section
thereof differs from the disclosure received from a Holder in its Selling Holder
Questionnaire (as amended or supplemented). The Company shall not
file a Registration Statement, any Prospectus or any amendments or supplements
thereto in which it (i) characterizes any Holder as an
underwriter, (ii) excludes a particular Holder due to such Holder refusing
to be named as an underwriter, or (iii) reduces the number of Registrable
Securities being registered on behalf of a Holder (except pursuant to, in the
case of this subsection (iii), the Commission Comments), without, in each case,
such Holder’s express written authorization. Not less than three (3)
Business Days prior to the filing of a Registration Statement or any related
Prospectus or any amendment or supplement thereto, the Company shall (i) furnish
to the Holders copies of all such documents proposed to be filed, which
documents will be subject to the review of such Holders, and (ii) cause its
officers and directors, counsel and independent registered public accounting
firm to respond to such inquiries as shall be necessary to conduct a reasonable
review of such documents. The Company shall not file a Registration
Statement or any such Prospectus or any amendments or supplements thereto to
which the Holders of a majority of the Registrable Securities shall reasonably
object in writing within three (3) Business Days of their receipt
thereof.
(b)
(i) Prepare and file with the Commission such amendments, including
post-effective amendments, to each Registration Statement and the Prospectus
used in connection therewith as may be necessary to keep such Registration
Statement continuously effective as to the applicable Registrable Securities for
its Effectiveness Period and prepare and file with the Commission such
additional Registration Statements in order to register for resale under the
Securities Act all of the Registrable Securities; (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus supplement,
and as so supplemented or amended to be filed pursuant to Rule 424; (iii)
respond as promptly as reasonably possible to any comments received from the
Commission with respect to each Registration Statement or any amendment thereto;
and (iv) comply in all material respects with the provisions of the Securities
Act and the Exchange Act with respect to the Registration Statement(s) and the
disposition of all Registrable Securities covered by each Registration
Statement.
(c)
Notify the Holders as promptly as reasonably possible of (i) the issuance by the
Commission of any stop order suspending the effectiveness of a Registration
Statement covering any or all of the Registrable Securities or the initiation of
any Proceedings for that purpose; (ii) 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; (iii) the date upon which any Registration
Statement or any post-effective amendment becomes effective; and (iv) the
occurrence of any event that makes any statement made in any 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 any Registration Statement, Prospectus or other
documents so that, in the case of a Registration Statement or 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 the light of the circumstances under which they were
made, not misleading.
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(d)
Use its reasonable best efforts to avoid the issuance of, or, if issued, obtain
the withdrawal of (i) any order suspending the effectiveness of a 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, without charge, as many copies of each
Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto as such Persons may reasonably
request. 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.
(f)
Prior to any public offering of Registrable Securities, register or qualify such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of all jurisdictions within the United States as any Holder may request, to keep
each such registration or qualification (or exemption therefrom) effective
during the Effectiveness Period and to do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statement(s).
(g)
Use commercially reasonable efforts to cause all Registrable Securities relating
to any Registration Statement to be quoted on the OTC Bulletin Board or any
other securities exchange, quotation system or market, if any, on which similar
securities issued by the Company are then listed, quoted or traded.
(h)
Upon the occurrence of any event contemplated by Section 3(c)(iv), as
promptly as possible, prepare a supplement or amendment, including a
post-effective amendment, to the applicable 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 applicable 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 the light of the circumstances under which they were
made, not misleading.
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(i)
Comply in all material respects with all applicable rules and regulations of the
Commission and make generally available to its security holders all documents
filed or required to be filed with the Commission, including, but not limited,
to, earning statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 not later than 90 days after the end of any 12-month
period if such period is a fiscal year commencing on the first day of the first
fiscal quarter of the Company after the Effective Date of the applicable
Registration Statement, which statement shall conform to the requirements of
Rule 158.
(j)
If (i) there is material non-public information regarding the Company which the
Company’s Board of Directors (the “Board”) determines not to be
in the Company’s best interest to disclose and which the Company is not
otherwise required to disclose, (ii) there is a significant business opportunity
(including, but not limited to, the acquisition or disposition of assets (other
than in the ordinary course of business) or any merger, consolidation, tender
offer or other similar transaction) available to the Company which the Board
determines not to be in the Company’s best interest to disclose, or (iii) the
Company is required to file a post-effective amendment to a Registration
Statement to incorporate the Company’s quarterly and annual reports and audited
financial statements on Forms 10-Q and 10-K, then the Company may (x) postpone
or suspend filing of a Registration Statement for a period not to exceed thirty
(30) consecutive days or (y) postpone or suspend effectiveness of a Registration
Statement for a period not to exceed thirty (30) consecutive days (each, an
“Allowed Delay”);
provided that the Company may not postpone or suspend effectiveness of a
Registration Statement under this Section 3(j) for more than 60 days in the
aggregate during any 360 day period; provided, however, that no such
postponement or suspension shall be permitted for consecutive thirty (30) day
periods arising out of the same set of facts, circumstances or
transactions.
4. Registration
Expenses. All fees and expenses incident to the performance of
or compliance with this Agreement by the Company shall be borne by the Company
whether or not any Registrable Securities are sold pursuant to a Registration
Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with any Trading Market on which the Common Stock is then
listed for trading, and (B) in 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
if the printing of prospectuses is reasonably requested by the holders of a
majority of the Registrable Securities included in the Registration Statement),
(iii) telephone and delivery expenses, (iv) fees and disbursements of counsel
for the Company, (v) Securities Act liability insurance, if the Company so
desires such insurance, and (vi) fees and expenses of all other Persons retained
by the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be
responsible for all of its internal expenses incurred in connection with the
consummation of the transactions contemplated by this Agreement (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties).
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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, investment advisors, partners, members 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 costs of
preparation and reasonable attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising
out of or relating to any violation of securities laws by the Company or 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 statements or omissions are based
solely upon information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein, or to the extent that such
information relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and expressly approved
in writing by such Holder expressly for use in the Registration Statement, such
Prospectus or such form of Prospectus or in any amendment or supplement thereto
(it being understood that the Holder has approved Annex A hereto for this
purpose) or (2), 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 an Advice or an
amended or supplemented Prospectus, but only if and to the extent that following
the receipt of the Advice or the amended or supplemented Prospectus the
misstatement or omission giving rise to such Loss would have been
corrected. The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding 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, arising solely out of
or based solely upon: (x) such Holder's failure to comply with the prospectus
delivery requirements of the Securities Act or (y) any untrue 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 arising solely
out of or based solely upon any omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading to the
extent, but only to the extent that, (1) such untrue statements or omissions are
based solely upon information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein, or to the extent that such
information relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and expressly approved
in writing by such Holder expressly for use in the Registration Statement (it
being understood that the Holder has approved Annex A hereto for this purpose),
such Prospectus or such form of Prospectus
or in any amendment or supplement thereto or (2) 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 an Advice or an amended or supplemented Prospectus,
but only if and to the extent that following the receipt of the Advice or the
amended or supplemented Prospectus the misstatement or omission giving rise to
such Loss would have been corrected. In no event shall the liability
of any selling Holder hereunder be greater in amount than the dollar amount of
the net proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
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(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 assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except (and only) to the
extent that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or further review) that such
failure shall have proximately and materially adversely prejudiced the
Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (3) the named
parties to any such Proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party, and such Indemnified Party
shall have been advised by counsel 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 such counsel shall be at the expense of the Indemnifying
Party). The Indemnifying Party shall not be liable for any settlement
of any such Proceeding effected without its written consent. 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.
All fees
and expenses of the Indemnified Party (including reasonable fees and expenses to
the extent incurred in connection with investigating or preparing to defend such
Proceeding in a manner not inconsistent with this Section) shall be paid to the
Indemnified Party, as incurred, within ten Trading Days of written notice
thereof to the Indemnifying Party (provided, that the Indemnifying Party may
require such Indemnified Party to undertake to reimburse
all such fees and expenses to the extent it is finally judicially determined
that such Indemnified Party is not entitled to indemnification
hereunder).
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(d)
Contribution. If
a claim for indemnification under Section 5(a) or 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. In no event shall any selling Holder be
required to contribute an amount under this Section 5(d) in excess of the gross
proceeds received by such Holder upon sale of such Holder’s Registrable
Securities pursuant to the Registration Statement giving rise to such
contribution obligation.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
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.
6. Rule
144.
Until
such time as all of the Registrable Securities may be sold pursuant to Rule 144
without restrictions on volume, as long as any Holder owns Shares, Warrants,
Warrant Shares or Registrable Securities, the Company covenants to timely file
(or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof
pursuant to Section 13(a) or 15(d) of the Exchange Act. Until such
time as all of the Registrable Securities may be sold pursuant to Rule 144
without restrictions on volume, as long as any Holder owns Shares, Warrants,
Warrant Shares or Registrable Securities, if the Company is not required to file
reports pursuant to Section 13(a) or 15(d) of the Exchange Act, it will prepare
and furnish to the Holders and make publicly available in accordance with Rule
144 annual and quarterly financial statements, together with a discussion
and analysis of such financial statements in form and substance substantially
similar to those that would otherwise be required to be included in reports
required by Section 13(a) or 15(d) of the Exchange Act, as well as any other
information required thereby, in the time period that such filings would have
been required to have been made under the Exchange Act; provided that the
provisions of this sentence shall be of no further force and effect in the event
of any sale of the Company or substantially all of its assets.
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7. 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, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each
Holder agree that monetary damages would not provide adequate compensation for
any losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b)
No Inconsistent
Agreements. Neither the Company nor any of its subsidiaries
has, as of the date hereof entered into and currently in effect, nor shall the
Company or any of its subsidiaries, on or after the date of this Agreement,
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof.
(c)
No Piggyback on
Registrations. Neither the Company nor any of its security
holders (other than the Holders in such capacity pursuant hereto) may include
securities of the Company in a Registration Statement other than the Registrable
Securities, and the Company shall not during the Effectiveness Period enter into
any agreement providing any such right to any of its security holders unless the
right so granted is subject in all respects to the prior rights in full of the
Holders set forth herein and is not otherwise in conflict with the provisions of
this Agreement.
(d)
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.
(e)
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 Sections 3(c) or 3(j), 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.
11
(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 stock option or other employee
benefit plans, then the Company shall send to each Holder written notice of such
determination and, if within fifteen calendar days after receipt of such notice,
any such Holder shall so request in writing, the Company will cause the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by the Holder, to the extent requisite
to permit the disposition of the Registrable Securities so to be registered,
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 7(f) for the
same period as the delay in registering such other securities. The
Company shall not be required to register any Registrable Securities pursuant to
this Section 7(f) that are eligible for sale pursuant to Rule 144 without
restrictions on volume. In the case of an underwritten public
offering, if the managing underwriter(s) or underwriter(s) should reasonably
object to the inclusion of the Registrable Securities in such Registration
Statement, then if the Company after consultation with the managing underwriter
should reasonably determine that the inclusion of such Registrable Securities
would materially adversely affect the offering contemplated in such Registration
Statement, and based on such determination recommends inclusion in such
Registration Statement of fewer or none of the Registrable Securities of the
Holders, then (x) the number of Registrable Securities of the Holders included
in such Registration Statement shall be reduced pro-rata among such Holders (based upon the number
of Registrable Securities requested to be included in the registration), if the
Company after consultation with the underwriter(s) recommends the inclusion of
fewer Registrable Securities, or (y) none of the Registrable Securities of the
Holders shall be included in such Registration Statement, if the Company after
consultation with the underwriter(s) recommends the inclusion of none of such
Registrable Securities; provided, however, that before
any such reduction in the number of Registrable Securities shall occur, all
securities proposed to be sold by all other selling stockholders (other than the
Company) shall be excluded from such Registration Statement (it being the intent
of the parties that all of the Registrable Securities are to be included in such
Registration Statement prior to the inclusion of any securities to be sold by
any other selling stockholders other than the Company). For the
purposes of this Section 7(f), the term “Registrable Securities” shall include
all unregistered shares of Common Stock issued to the Holders pursuant to
Section 7(g).
12
(g)
Failure to File
Registration Statement and Other Events. The Company and the
Investors agree that the Holders will suffer damages if the Registration
Statement is not filed on or prior to the Filing Date and not declared effective
by the Commission on or prior to the Effective Date and maintained in the manner
contemplated herein during the Effectiveness Period or if certain other events
occur. The Company and the Investors further agree that it would not
be feasible to ascertain the extent of such damages with
precision. Accordingly, except for an Allowed Delay if (A) the
Registration Statement is not filed on or prior to the Filing Date, or (B) the
Registration Statement is not declared effective by the Commission on or prior
to the Effective Date, or (C) the Company fails to file with the Commission a
request for acceleration in accordance with Rule 461 promulgated under the
Securities Act within five (5) Business Days of the date that the Company is
notified (orally or in writing, whichever is earlier) by the Commission that a
Registration Statement will not be “reviewed,” or is not subject to further
review, or (D) the Registration Statement is filed with and declared effective
by the Commission but thereafter ceases to be effective as to all Registrable
Securities at any time prior to the expiration of the Effectiveness Period,
without being succeeded immediately by a subsequent Registration Statement filed
with and declared effective by the Commission (any such failure or breach being
referred to as an “Event,”
and for purposes of clauses (A) and (B) the date on which such Event occurs, or
for purposes of clause (C) the date on which such five (5) Business Day period
is exceeded, or for purposes of clause (D) after more than fifteen (15) Business
Days, being referred to as “Event
Date”), the Company shall pay an amount as liquidated damages to each
Holder, payable in cash or unregistered shares of Common Stock at the sole
option of the Company, equal to one percent (1 %) of the amount of the Holder’s
initial investment in the Shares for each calendar month or portion thereof
thereafter from the Event Date until the applicable Event is cured; provided, however, that in no
event shall the amount of liquidated damages payable at any time and from time
to time to any Holder pursuant to this Section 7(g) exceed an aggregate of ten
percent (10%) of the amount of the Holder’s initial investment in the Shares;
and provided,
further, that
in the event the Commission does not permit all of the Registrable Securities to
be included in the Registration Statement solely because of its application of
Rule 415, no liquidated damages shall be payable with respect to the Registrable
Securities that are not included in such Registration Statement solely as a
result of Rule 415 and provided, further, that
liquidated damages shall cease to accrue with respect to any Shares or Warrant
Shares that cease to be Registrable Securities. If the Company elects
to pay liquidated damages in unregistered shares of the Common Stock, then
number of such shares of the Common Stock to be issued to each Holder pursuant
to this paragraph (g) shall be an amount equal to (i) the liquidated damage
amount, divided by (ii) the daily volume weighted average price of the Common
Stock on the OTC Bulletin Board or other principal trading market for the Common
Stock for the twenty (20) Trading Days immediately preceding such Event
Date. Liquidated damages payable by the Company pursuant to this
Section 7(g) shall be payable on the first (1st)
Business Day of each thirty (30) day period following the Event
Date.
(h)
Amendments and
Waivers. The provisions of this Agreement, including the
provisions of this Section 7(h), 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 no less than a majority in interest of the then outstanding
Registrable Securities. Notwithstanding the foregoing,
a waiver or consent to depart from the provisions hereof with respect to a
matter that relates exclusively to the rights of certain Holders and that does
not directly or indirectly affect the rights or obligations of other Holders may
be given by Holders of at least a majority of the Registrable Securities to
which such waiver or consent relates; provided, further
that no amendment or waiver to any provision of this Agreement relating to
naming any Holder or requiring the naming of any Holder as an underwriter may be
effected in any manner without such Holder’s prior written
consent. Section 2(a) may not be amended or waived except by written
consent of each Holder affected by such amendment or waiver.
13
(i)
Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile (provided the sender receives a
machine-generated confirmation of successful transmission) at the facsimile
number specified in this Section prior to 6:30 p.m. (New York City time) on a
Trading Day, (b) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number
specified in this Section on a day that is not a Trading Day or later than 6:30
p.m. (New York City time) on any Trading Day, (c) the Trading Day following the
date of mailing, if sent by U.S. nationally recognized overnight courier
service, or (d) upon actual receipt by the party to whom such notice is required
to be given. The address for such notices and communications shall be
as follows:
|
|
If
to the Company:
|
|
|
Room
B, Second Floor, M-10, Central (W.)
|
||
| Shenzhen High-Tech Park, Shenzhen | ||
| People’s Republic of China 518057 | ||
|
Attn:
Chief Executive Officer
|
||
|
Facsimile:
x00-000-00000000
|
||
|
With
a copy to:
|
Xxxxx
Rozynko LLP
|
|
|
000
Xxxxxxxxxx Xx., Xxx 0000
|
||
|
Xxx
Xxxxxxxxx, XX 00000
|
||
|
Facsimile: (000)
000-0000
|
||
|
Attn.: Xxxx
X. Xxxxxxxx
|
| If to an Investor: |
To
the address set forth under such Investor's name on the signature pages
hereto.
|
|
| If to any other Person who is then the registered Holder: | ||
|
To the address of
such Holder as it appears in the stock transfer books of the Company or
such other address as may be designated in writing hereafter, in the same
manner, by such
Person.
|
||
or such
other address as may be designated in writing hereafter, in the same manner, by
such Person.
14
(j)
Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and
shall inure to the benefit of each Holder. The Company may not assign
its rights or obligations hereunder without the prior written consent of each
Holder. Each Holder may assign their respective rights hereunder in
the manner and to the Persons as permitted under the Purchase
Agreement.
(k)
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.
(l)
Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law
thereof. Each party agrees that all Proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement (whether brought against a party hereto or its respective
Affiliates, employees or agents) will be commenced in the courts of the State of
Texas located in Dallas County or the United States District Court for the
Northern District of Texas. Each party hereto hereby irrevocably
submits to the exclusive jurisdiction of the courts of the State of Texas
located in Dallas County and the United States District Court for the Northern
District of Texas, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any
Proceeding, any claim that it is not personally subject to the jurisdiction of
any court of the State of Texas located in Dallas County or the United States
District Court for the Northern District of Texas, or that such Proceeding has
been commenced in an improper or inconvenient forum. Each party
hereto hereby irrevocably waives personal service of process and consents to
process being served in any such Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by
law. Each party hereto hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
Proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. If either party shall commence a Proceeding to
enforce any provisions of this Agreement, then the prevailing party in such
Proceeding shall be reimbursed by the other party for its attorney’s fees and
other costs and expenses incurred with the investigation, preparation and
prosecution of such Proceeding.
(m)
Cumulative
Remedies. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
15
(n)
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 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.
(o)
Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
(p)
Independent Nature of
Investors' Obligations and Rights. The obligations of each
Investor under this Agreement are several and not joint with the obligations of
each other Investor, and no Investor shall be responsible in any way for the
performance of the obligations of any other Investor under this
Agreement. Nothing contained herein or in any Transaction Document,
and no action taken by any Investor pursuant thereto, shall be deemed to
constitute the Investors as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Investors are in any
way acting in concert or as a group with respect to such obligations or the
transactions contemplated by this Agreement or any other Transaction
Document. Each Investor acknowledges that no other Investor will be
acting as agent of such Investor in enforcing its rights under this
Agreement. Each Investor 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 Investor to be
joined as an additional party in any Proceeding for such purpose. The
Company acknowledges that each of the Investors has been provided with the same
Registration Rights Agreement for the purpose of closing a transaction with
multiple Investors and not because it was required or requested to do so by any
Investor.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES TO FOLLOW]
16
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
| SINOHUB, INC. | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES OF INVESTORS TO FOLLOW]
17
IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of the date first written
above.
| NAME OF INVESTING ENTITY | |||
| By: | |||
| Name: | |||
| Title: | |||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
||
| Street: | |||
| City/State/Zip: | |||
| Attention: | |||
| Tel: | |||
| Fax: | |||
| Email: | |||
18
Annex
A
Plan of
Distribution
The
Selling Stockholders and any of their pledgees, donees, transferees, 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 quoted 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 Investors;
|
|
·
|
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;
|
|
·
|
to
cover short sales made after the date that this Registration Statement is
declared effective by the
Commission;
|
|
·
|
broker-dealers
may agree with the Selling Stockholders to sell a specified number of such
shares at a stipulated price per
share;
|
|
·
|
a
combination of any such methods of sale;
and
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or
discounts from the Selling Stockholders (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The Selling Stockholders do not expect these commissions
and discounts 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 Securities owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell 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 pledgee, transferee or other successors in interest
as selling stockholders under this prospectus.
19
Upon the
Company being notified in writing by a Selling Stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of Common
Stock through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such the shares of Common Stock were sold, (iv)the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in
this prospectus, and (vi) other facts material to the transaction. In
addition, upon the Company being notified in writing by a Selling Stockholder
that a donee or pledgee intends to sell more than 500 shares of Common Stock, a
supplement to this prospectus will be filed if then required in accordance with
applicable securities law.
The
Selling Stockholders also may transfer the shares of Common Stock in other
circumstances, in which case the transferees, pledgees or other successors in
interest will be the selling beneficial owners for purposes of 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 or discounts under the Securities Act. Discounts,
concessions, commissions and similar selling expenses, if any, that can be
attributed to the sale of Securities will be paid by the Selling Stockholder
and/or the purchasers. Each Selling Stockholder has represented and
warranted to the Company that it acquired the securities subject to this
Registration Statement in the ordinary course of such Selling Stockholder’s
business and, at the time of its purchase of such securities such Selling
Stockholder had no agreements or understandings, directly or indirectly, with
any person to distribute any such securities.
The
Company has advised each Selling Stockholder that it is the view of the
Commission that it may not use shares registered on this Registration Statement
to cover short sales of Common Stock made prior to the date on which this
Registration Statement shall have been declared effective by the
Commission. If a Selling Stockholder uses this prospectus for any
sale of the Common Stock, it will be subject to the prospectus delivery
requirements of the Securities Act. The Selling Stockholders will be
responsible to comply with the applicable provisions of the Securities Act and
Exchange Act, and the rules and regulations thereunder promulgated, including,
without limitation, Regulation M, as applicable to such Selling Stockholders in
connection with resales of their respective shares under this Registration
Statement.
The
Company is required to pay all fees and expenses incident to the registration of
the shares, but the Company will not receive any proceeds from the sale of the
Common Stock. The Company has agreed to indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
20
Annex
B
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of common stock (the “Common Stock”), of SinoHub,
Inc., a Delaware corporation (the “Company”), understands that
the Company has filed or intends to file with the Securities and Exchange
Commission (the “Commission”) a Registration
Statement for the registration and resale of the Registrable Securities, in
accordance with the terms of the Registration Rights Agreement, dated as of
September 10, 2008 (the “Registration Rights
Agreement”), among the Company and the Investors named
therein. A copy of the Registration Rights Agreement is available
from the Company upon request at the address set forth below. All
capitalized terms used and not otherwise defined herein shall have the meanings
ascribed thereto in the Registration Rights Agreement.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
|
1.
|
|
|
|
(a)
|
Full
Legal Name of Selling
Securityholder
|
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities Listed in Item 3 below are
held:
|
|
|
(c)
|
Full
Legal Name of Natural Control Person (which means a natural person who
directly or indirectly alone or with others has power to vote or dispose
of the securities covered by the
questionnaire):
|
|
Telephone:
|
|
|
Fax:
|
|
Contact
Person:
|
21
| 3. | Beneficial Ownership of Registrable Securities: |
|
|
Type
and Principal Amount of Registrable Securities beneficially
owned:
|
|
|
(a)
|
Are
you a broker-dealer?
|
Yes o No ¨
|
|
Note:
|
If
yes, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
|
|
(b)
|
Are
you an affiliate of a
broker-dealer?
|
Yes ¨ No ¨
|
|
(c)
|
If
you are an affiliate of a broker-dealer, do you certify that you bought
the Registrable Securities in the ordinary course of business, and at the
time of the purchase of the Registrable Securities to be resold, you had
no agreements or understandings, directly or indirectly, with any person
to distribute the Registrable
Securities?
|
Yes ¨ No ¨
|
|
Note:
|
If
yes, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
|
5.
|
Beneficial
Ownership of Other Securities of the Company Owned by the Selling
Securityholder.
|
Except
as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable
Securities listed above in Item 3.
|
|
Type
and Amount of Other Securities beneficially owned by the Selling
Securityholder:
|
22
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any
other material relationship with the Company (or its predecessors or affiliates)
during the past three years.
|
|
State
any exceptions here:
|
7. The Company has
advised each Selling Stockholder that it is the view of the Commission that it
may not use shares registered on the Registration Statement to cover short sales
of Common Stock made prior to the date on which the Registration Statement is
declared effective by the Commission, in accordance with 1997 Securities and
Exchange Commission Manual of Publicly Available Telephone Interpretations
Section A.65. If a Selling Stockholder uses the prospectus for any
sale of the Common Stock, it will be subject to the prospectus delivery
requirements of the Securities Act. The Selling Stockholders will be
responsible to comply with the applicable provisions of the Securities Act and
Exchange Act, and the rules and regulations thereunder promulgated, including,
without limitation, Regulation M, as applicable to such Selling Stockholders in
connection with resales of their respective shares under the Registration
Statement.
The
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
and prior to the Effective Date for the Registration Statement.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 and the inclusion of such
information in the Registration Statement and the related
prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of
the Registration Statement and the related prospectus.
| Dated: |
Beneficial
Owner:
|
| By: | ||||
| Name: | ||||
| Title: | ||||
23
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
|
|
Facsimile:
|
|
Attn.:
|
24