REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (the “Agreement”)
is
entered into as of this ____ day of April, 2008, by and between Zulu Energy
Corp., a Colorado corporation (the “Company”),
and
the persons designated as the investors on the signature pages of this Agreement
(the “Investors”).
WHEREAS,
Investors have agreed to purchase from the Company the number of shares of
common stock (in the aggregate, the “Shares”)
and
warrants to purchase shares of common stock (in the aggregate, the “Warrants”,
and
together with the Shares, the “Securities”)
of the
Company that is indicated on the signature pages of the respective Investors,
pursuant to a Subscription Agreement dated as of the date set forth on the
Company’s signature page to this Agreement (the “Subscription
Agreement”);
WHEREAS,
as an inducement to the Investors to purchase the Securities, the Company has
agreed to grant to the Investors certain registration rights covering resales
of
the Shares and the shares of common stock issuable upon exercise of the Warrants
by the Investors in non-underwritten transactions;
WHEREAS,
the Investors and the Company desire to enter into this Agreement providing
for
matters relating to such registration; and
WHEREAS,
pursuant to the Subscription Agreement, that Investors also have the right
under
certain circumstances to participate in a Subsequent Financing (as defined
therein);
NOW,
THEREFORE, in consideration of the mutual agreements contained herein, and
for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Investors and the Company agree as
follows:
1. Company
Registration.
If (but
without any obligation to do so) at any time prior to the third anniversary
of
this Agreement, the Company proposes to register any of its securities under
the
Securities Act of 1933, as amended (the “Act”),
in
connection with the public offering of such securities solely for cash (other
than a registration on Form X-0, Xxxx X-0 or any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities (as
defined in Section 1(a) below)), the Company shall, each such time,
promptly give each Investor written notice of such registration. Upon the
written request of an Investor given within twenty (20) days after receipt
of
such written notice from the Company, the Company shall cause to be included
in
the registration statement all of the Registrable Securities that the Investor
has requested to be registered (a “Piggyback
Registration Statement”);
provided, however, that if the managing underwriter of any underwritten offering
by the Company expresses reasonable written objection to the registration of
all
of the Registrable Securities, then the Registrable Securities which shall
be
registered in such offering on behalf of holders of Registrable Securities
shall
be reduced in the proportion equal to the average proportion of reduction as
that of all such holders seeking registration in connection with such offering,
subject to any rights granted to other holders of securities of the Company
that
are expressly by the terms of their agreements with the Company entitled to
have
priority registration rights. If, at any time after giving written notice of
its
intention to register any such Registrable Securities and prior to the effective
date of the Piggyback Registration Statement filed in connection with such
registration, the Company shall determine for any reason not to register or
to
delay registration of such Registrable Securities, the Company may, at its
election, give written notice of such determination to each Investor and,
thereupon, in the case of a determination not to register, the Company need
not
register any Registrable Securities in connection with such
registration.
(a) For
purposes of this Agreement, “Registrable
Securities”
means
all of the Shares, together with any shares of common stock issuable upon
exercise of the Warrants, and any shares of common stock issued or issuable
with
respect to the Shares as a result of any stock split, dividend or other
distribution, recapitalization or similar event with respect to the
Shares.
2. Mandatory
Registration.
If the
Company does not consummate a Subsequent Financing within one hundred twenty
days of the closing of the Offering (as defined in the Subscription Agreement),
then, unless the Registrable Securities are eligible for resale pursuant to
Rule
144, the Investors shall have have the registration rights provided by this
Section 2.
(a) Filing
of Registration Statement.
The
Company shall file a shelf registration statement under the Act, on Form S-3
(subject to the last sentence of this Section 2(a)) to register resales or
other
dispositions of Registrable Securities by Investors in non-underwritten
transactions (the “Mandatory
Registration Statement”).
The
Company shall file the Mandatory Registration Statement as soon as practicable
after the date that is the six month anniversary of the closing of the Offering
and in no event more than 30 days thereafter, and such Mandatory Registration
Statement shall not include any securities other than Registrable Securities.
In
the event that Form S-3 is not available for the registration of the resale
of
Registrable Securities hereunder, the Company shall (i) register the resale
of
the Registrable Securities on another appropriate form reasonably acceptable
to
the holders of at least a majority of the Registrable Securities and (ii)
undertake to register the Registrable Securities on Form S-3 as soon as such
form is available, provided that the Company shall maintain the effectiveness
of
the Mandatory Registration Statement then in effect until such time as a
Mandatory Registration Statement on Form S-3 covering the Registrable Securities
has been declared effective by the Commission (as defined below).
(b) Effectiveness
of Registration Statement.
The
Company shall use its best efforts to cause the Mandatory Registration Statement
to become effective under the Act as soon as practicable after the filing of
the
Mandatory Registration Statement. In addition, the Company shall file,
during the
period specified in Section 7(i),
a post
effective amendment to the
Mandatory Registration Statement containing
the information required by Regulation S-K, Item 512(a)(1)(i)-(iii). In the
event that during the period specified in Section 7(i), the Company ceases
to be
eligible to use Form S-3, the Company will promptly file a new registration
statement on the form for which it is then eligible.
2
3. State
Registration or Qualification.
The
Company shall use its commercially reasonable efforts to register or qualify
the
Registrable Securities covered by the Mandatory Registration Statement or the
Piggyback Registration Statement (collectively, the “Registration
Statement”),
as the
case may be, for public sale under the securities or blue sky laws of the
respective states of principal residence of the Investors and such other states
that are reasonably designated by any of them in writing as a state in which
sales of the Registrable Securities may be made, if such registration or
qualification is necessary; provided, however, that the Company shall not be
required by this Section 3 to qualify to do business as a foreign corporation
or
otherwise to subject itself to taxation therein, or to file any general consent
to service of process in any state.
4. Delivery
of Prospectuses; Suspension of Sales.
The
Company shall provide to the Investors the number of prospectuses relating
to
the Registrable Securities as the Investors shall each reasonably request to
enable the Investors to comply with any applicable prospectus delivery
requirements. If, during the effectiveness of the Registration Statement, an
intervening event should occur that, in the good faith opinion of the Company’s
Board of Directors and the Company’s counsel, makes the prospectus included in
the Registration Statement no longer comply with the Act, after notice from
the
Company to the Investors of the occurrence of such an event, the Investors
shall
make no further sales or other dispositions, or offers therefor, of Registrable
Securities under the Registration Statement until they receive from the Company
notice that sales and dispositions, and offers therefor, may resume and, if
the
prospectus has been changed other than by the filing of a report that is
incorporated therein by reference without any other revision, copies of a new,
amended or supplemented prospectus complying with the Act, unless the
Commission’s rules do not then require physical delivery of such new, amended or
supplemented prospectus. The Company shall keep the Investors fully informed
as
to the status of its efforts, which shall be prompt and diligent, to cause
such
new, amended or supplemented prospectus to be available for use by the
Investors, in each such case as soon as practicable and in no event more than
25
days following such notice.
5. Expenses
of Registration.
The
Company shall bear all of the expenses of registration or qualification of
the
Registrable Securities under the Act and under the state securities or blue
sky
laws as provided in Section 3 hereof; provided, however, that each Investor
shall bear its own selling expenses or commissions attributable to the
Registrable Securities being sold by such Investor and shall bear fees and
expenses of its own counsel, if any.
6. Information
to be Furnished by Investor.
Each
Investor shall furnish in writing to the Company all information within such
Investor’s possession or knowledge required by the applicable rules and
regulations of the Securities and Exchange Commission (“SEC or Commission”),
including the information specified by Items 507 and 508 of Regulation S-K
under
the Act.
3
7. Procedures.
The
Company shall (a) notify the Investors by the end of the business day following
the day on which it receives notice thereof, of the time when the Registration
Statement has become effective or any supplement to any prospectus forming
a
part of the Registration Statement has been filed; (b) notify the Investors
promptly of any request by the Commission for the amending or supplementing
of
the Registration Statement or prospectus or for additional information and
shall
use its best efforts to file any such amendment or supplement within 10 days,
and in no event more than 20 days, after such request or receipt of comments
from the Commission’s staff (adding to each such number of days any delay
exceeding five days caused by the Investors in submitting, following written
request therefor made by the Company, any information required from them to
prepare such amendment or supplement); (c) prepare and file with the Commission,
promptly upon any Investor’s request, any amendment or supplement to such
Mandatory Registration Statement or prospectus which, in the opinion of counsel
for the Investor and counsel for the Company, may be necessary or desirable
in
connection with the distribution of the Registrable Securities by such Investor;
(d) prepare and promptly file with the Commission, and promptly notify the
Investors of the filing of, such amendment or supplement to the Registration
Statement or prospectus as may be necessary to correct any misstatement or
omission, if at any time when a prospectus relating to the Registrable
Securities is required to be delivered under the Act, any event shall have
occurred as a result of which any such prospectus would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading and such filing shall be made
promptly by the Company but in no event later than the time limitation set
forth
in Section 4; (e) in case the Investor is required to deliver a prospectus,
at a
time when the prospectus then in effect may no longer be used under the Act,
prepare promptly upon request such amendment or amendments to the Registration
Statement and such prospectus or prospectuses as may be necessary to permit
compliance with the requirements of Section 10 of the Act subject to clause
(i)
below; (f) not file any amendment or supplement to the Mandatory Registration
Statement or prospectus to which any Investor shall reasonably object after
having been furnished a copy at a reasonable time prior to the filing thereof;
(g) advise the Investors promptly after it shall receive notice or obtain
knowledge thereof of the issuance of any stop order by the Commission suspending
the effectiveness of the Registration Statement or the initiation or threatening
of any proceeding for that purpose and promptly use its best efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such stop order
should be issued; (h) furnish to the Investors as soon as available copies
of
the Registration Statement and each preliminary or final prospectus, or
supplement required to be prepared, pursuant to Section 4 or this Section 7,
all
in such quantities as the Investors may from time to time reasonably request;
(i) keep the Mandatory Registration Statement effective for a period of one
year
from the Closing Date (as defined in the Subscription Agreement) plus a number
of days equal to the number of days, if any, during which the Investors’ right
to offer and sell such Registrable Securities shall have been suspended pursuant
to the provisions of Section 4 hereof (which number of days shall in no event
exceed 60 days during any period of 12 months), or until the intended
distribution of Registrable Securities is completed by all Investors, whichever
occurs first; and the Company may after such period deregister any of the
Registrable Securities remaining unsold if the Company elects to do so or if
the
Commission or its staff so requests; and (j) if any of the Company’s shares of
common stock are then listed on any securities exchange(s), the Company will
cause all shares covered by the Registration Statement to be listed on such
exchange(s), as the case may be. By 9:30 am Eastern Time on the business day
following the date on which the Commission declares the Mandatory Registration
Statement effective, the Company shall file with the Commission in accordance
with Rule 424 under the Act the final prospectus to be used in connection with
sales pursuant to such Demand Registration Statement. The Company shall promptly
furnish to each Investor that so requests in writing and its legal counsel,
without charge, copies of any correspondence from the SEC or the staff of the
SEC to the Company or its representatives relating to the Mandatory Registration
Statement, the prospectus contained therein or any amendment or supplement
to
either of them.
4
8. Indemnification
by Company.
The
Company will, to the maximum extent permitted by law, indemnify and hold
harmless the Investors, the directors, officers, partners, members, employees,
agents, representatives of, and each Person, if any, who controls an Investor
within the meaning of the Act, against any losses, claims, damages, or
liabilities, joint or several, to which such Investor or such other Person
may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) are caused by any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any prospectus relating thereto, or any amendment or
supplement thereof, or arising out of or based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or a violation or
alleged violation by the Company of: (i) the Securities Act, (ii) the Securities
Exchange Act of 1934, as amended, (iii) any other law relating to the offer
or
sale of the Registrable Securities pursuant to the Registration Statement
(including, without limitation, any state securities law or any rule or
regulation thereunder), (iv) any prospectus relating thereto, or (v) any
amendment or supplement thereof; and will reimburse such Investor and each
such
other Person for any legal or other expenses incurred by such Investor or such
other Person in connection with investigating or defending against any such
loss, claim, damage, liability or action; provided, however, that the Company
will not be liable in any such case to an Investor or such other Person to
the
extent that any such loss, claim, damage, expense or liability arises out of,
or
is based upon, an untrue statement or alleged untrue statement or omission
or
alleged omission so made in reliance upon and in conformity with information
that has been furnished in writing by such Investor in accordance with Section
6
expressly for use in connection with the preparation of the Registration
Statement; provided further, that the Company shall not be required to provide
such indemnification to such Investor or such other Person if such loss, claim,
damage or liability (or action in respect thereof) arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any preliminary prospectus and if, in respect to such
statement, alleged statement, omission or alleged omission, the final prospectus
corrected such statement, alleged statement, omission or alleged omission and
a
copy of such final prospectus had not been sent or given by such Investor or
such other Person (but only if they were required to do so under applicable
law)
at or prior to the confirmation of the sale by such Investor or such other
Person with respect to which such loss, claim, damage, expense or liability
relates. The Company shall reimburse each Investor and each such other Persons,
promptly as such expenses are incurred and are due and payable, for any legal
fees or other reasonable expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, expense or
liability.
9. Indemnification
by Investors.
Each
Investor shall (severally and not jointly), to the maximum extent permitted
by
law, indemnify and hold harmless the Company, each of its directors, each of
its
officers who has signed the Registration Statement, and each employee, agent,
representative of and each person, if any, who controls the Company, within
the
meaning of the Act, against any loss, claim, damage or liability of which the
Company, or any such director, officer or other person may be or become subject
under the Act or otherwise, insofar as such loss, claim, damage or liability (or
action in respect thereof) is caused by any untrue or alleged untrue statement
of any material fact contained in the Registration Statement, such prospectus,
or amendment or supplement thereof, or arises out of or is based upon the
omission or the alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements therein not misleading;
in
each case to the extent, but only to the extent, that such untrue statement
or
alleged untrue statement or omission or alleged omission relates to the
information that has been furnished in writing by such Investor in accordance
with Section 6 expressly for use in connection with the preparation of the
Registration Statement; provided, however, that the indemnity agreement
contained in this Section 9 and the agreement with respect to contribution
contained in Section 11 shall not apply to amounts paid in settlement of any
such loss, claim, damage, expense or liability if such settlement is effected
without the prior written consent of such Investor, which consent shall not
be
unreasonably withheld or delayed.
5
10. Notice
to Indemnitor.
Promptly after receipt by an indemnified party of notice of the commencement
of
any action, claim or proceeding, such indemnified party will, if a claim thereof
is to be made against the indemnifying party pursuant hereto, notify the
indemnifying party in writing of the commencement thereof, but the omission
to
notify the indemnifying party will not relieve it from any liability which
it
may have to any indemnified party except to any extent to which the indemnifying
party is actually prejudiced thereby. In case such action, claim or proceeding
is brought against any indemnified party, and it notifies the indemnifying
party
in writing of the commencement thereof, the indemnifying party will be entitled
to participate in, and, to the extent that it may wish, jointly with any other
indemnifying party, similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided, however,
that an indemnified party shall have the right to retain its own counsel with
the fees and expenses of such counsel for such indemnified party to be paid
by
the indemnifying party, if (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) the indemnifying party
has
failed after a reasonable period of time to assume such defense and to employ
counsel reasonably satisfactory to such indemnified party or (iii) in the
reasonable opinion of the indemnified party the representation by counsel of
the
indemnified party and the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party and
any
other party represented by such counsel in such proceeding. The indemnified
party shall cooperate fully with the indemnifying party in connection with
any
negotiation or defense of any such action, claim or proceeding by the
indemnifying party and shall furnish to the indemnifying party all information
reasonably available to the indemnified party which relates to such action,
claim or proceeding. The indemnifying party shall keep the indemnified party
fully apprised at all times as to the status of the defense or any settlement
negotiations with respect thereto. No indemnifying party shall be liable for
any
settlement of any action, claim or proceeding effected without its prior written
consent, provided, however, that the indemnifying party shall not unreasonably
withhold, delay or condition its consent. No indemnifying party shall, without
the prior written consent of the indemnified party, consent to entry of any
judgment or enter into any settlement or other compromise which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to
such
indemnified party of a release from all liability in respect to such action,
claim or proceeding.
11. Contribution.
If the
indemnification provided for in Section 8 or Section 9 is unavailable to an
indemnified party thereunder in respect to any losses, claims, damages,
liabilities or expenses referred to therein, then an indemnifying party, in
lieu
of indemnifying such indemnified party, shall contribute to the amount paid
or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the Company, on the one hand, and the Investor(s), on the
other hand, in connection with the statements or omissions that resulted in
such
losses, claims, damages, liabilities or expenses. The relative fault of the
Company and the Investor(s) in connection with the statements that resulted
in
such losses, claims, damages, liabilities or expenses shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of material facts or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Investor(s) and the
parties’ relative intent, knowledge, access to information and opportunity to
correct such statement or omission; provided, however, that no Person involved
in the sale of Registrable Securities who is guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) in
connection with such sale shall be entitled to contribution from any Person
involved in such sale of Registrable Securities who was not guilty of fraudulent
misrepresentation.
6
12. Indemnification
Limitation and Continuation.
Notwithstanding any other provision of this Agreement, the liability of any
Investor for indemnification or contribution under this Agreement shall not
exceed an amount equal to the number of shares of Registrable Securities sold
by
such Investor under the Registration Statement multiplied by the net amount
per
share received in such sale(s). The indemnification and contribution provided
for under this Agreement shall remain in full force and effect regardless of
any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling person of such indemnified party and shall survive
the
transfer of securities.
13. Notices.
All
notices required or permitted to be given pursuant to this Agreement shall
be in
writing and shall be deemed given when received when delivered personally or,
by
facsimile, by overnight courier or by first class mail, postage prepaid,
registered or certified with return receipt request, at the addresses set forth
on the signature page or at such other address as any party shall designate
in
writing to the other.
14. Governing
Law; Counterparts.
This
Agreement shall in all respects be governed by and construed and enforced in
accordance with the laws of the State of Colorado, and shall be binding upon
and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors or assigns, provided that the terms and conditions
of Section 16 hereof are satisfied. Notwithstanding anything in this
Agreement to the contrary, if at any time any Investor shall cease to own any
Shares, Warrants or Registrable Shares, all of such Investor’s rights under this
Agreement shall immediately terminate. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY. Each
of
the parties hereto irrevocably submits to the exclusive jurisdiction of the
courts of the State of Colorado, County of Denver, and the United States
District Court for the District of Colorado for the purpose of any suit, action,
proceeding or judgment relating or arising out of this Agreement and the
transactions contemplated hereby. Service of process in connection with any
such
suit, action or proceeding may be served on each party hereto by the same
methods as are specified for the giving of notices under this Agreement. Each
of
the parties hereto irrevocably consents to the jurisdiction of any such court
in
any such suit, action or proceeding and the laying of venue in such court.
Each
party hereto irrevocably waives any objection to the laying of venue of any
such
suit, action or proceeding brought in such courts and irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
7
15. Assignment.
At any
time the Registration Statement is not available and with the consent of the
Company, the rights under this Agreement shall be automatically assignable
by
each Investor to any transferee of all or any portion of such Investor’s
Registrable Securities if such Investor’s rights in the Registrable Securities
can otherwise be transferred in accordance with all applicable securities laws,
and if: (i) such Investor agrees in writing with the transferee or assignee
to
assign such rights, and the transferee or assignee agrees to be bound by all
provisions of this Agreement, and a copy of such agreement is furnished to
the
Company within a reasonable time after such assignment; (ii) the Company is,
within five business days after such transfer or assignment, furnished with
written notice of (a) the name and address of such transferee or assignee,
and
(b) the securities with respect to which such registration rights are being
transferred or assigned; and (iii) as a part of such transfer or assignment
the
further disposition of such securities by the transferee or assignee is
restricted under the Act and applicable state securities laws.
16. Amendments;
Waivers.
No
provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and each Investor
or, in the case of a waiver, by the party against whom enforcement of any such
waiver is sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right.
17. Entire
Agreement.
This
Agreement supersedes all other prior oral or written agreements between the
Investor and the Company with respect to the matters discussed herein, and
this
Agreement contains the entire understanding of parties with respect to the
matters covered herein and, except as specifically set forth herein, neither
the
Company nor the Investor makes any representation, warranty, covenant or
undertaking with respect to such matter.
18. Counterparts.
This
Agreement may be executed in a number of counterparts, all of which together
shall for all purposes constitute one Agreement, binding on all the parties
hereto notwithstanding that all such parties have not signed the same
counterpart.
[Signature
Pages Follow]
8
Company
Signature Page to
Dated
April __, 2008
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
above set forth.
| “COMPANY” | |||
| ZULU ENERGY CORP. | |||
| By: | |||
| Name: | |||
| Title: | |||
Address
for Notice:
000
X.
Xxxx Xxxxxx,
Xxxxxxxx,
Xxxxxxx 00000
Attention:
Xxxx Xxxxxx
President
Fax:
(___) ___-_____
With
a
copy to (which shall not constitute notice):
Xxxxxx
Xxxxx LLP
0000
Xxxxxxxxxx Xxxxxx
Xxxxx
0000
Xxxxxx,
XX 00000
Attention:
Xx. Xxxxxx X. Xxxxxxx, Esq.
Fax:
(000) 000-0000
9
Investor
Counterpart Signature Page to
Dated
____ __, 2008
| “INVESTOR” | |||
| Date of Registration Rights Agreement, | |||
| ______ __, 2008 | By: | ||
| Name: | |||
| Title: | |||
| Number of Shares: _______________ | Address: | ||
10
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of common stock, par value $0.001 per share (the
“Common Stock”), of Zulu Energy Corp., a Colorado corporation (the “Company”)
(the “Registrable Securities”) understands that the Company has filed or intends
to file with the Securities and Exchange Commission (the “Commission”) a
registration statement (the “Registration Statement”) under the Securities Act
of 1933, as amended (the “Securities Act”), for the Registrable Securities, in
accordance with the terms of the Registration Rights Agreement, dated as of
____________, 2008 (the “Registration Rights Agreement”), among the Company and
the Purchasers named therein. A copy of the Registration Rights Agreement is
available from the Company upon request at the address set forth below. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling securityholder in the
Registration Statement and the related prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Registration Statement and the related
prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling Securityholder”) of Registrable
Securities hereby elects to include the Registrable Securities owned by it
and
listed below in Item 3 (unless otherwise specified under such Item 3) in the
Registration Statement.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
1. Name.
|
(a)
|
Full
Legal Name of Selling
Securityholder
|
|
|
_______________________________
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities Listed in Item 3 below are
held:
|
|
|
_______________________________
|
|
(c)
|
Full
Legal Name of Natural Control Person (which means a natural person
who
directly you indirectly alone or with others has power to vote or
dispose
of the securities covered by the
questionnaire):
|
|
|
_______________________________
|
11
2. Address
for Notices to Selling Securityholder:
| Telephone: | |
| Fax: | |
| Contact Person: |
3. Beneficial
Ownership of Registrable Securities:
|
(a)
|
Type
and Number of Registrable Securities beneficially
owned:
|
| ___________________________________ |
| ___________________________________ |
| ___________________________________ |
4. Broker-Dealer
Status:
|
(a)
|
Are
you a broker-dealer?
|
________
Yes __________
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
no, the Commission’s staff has indicated that you should be identified as an
underwriter in the Registration Statement.
12
5. Beneficial
Ownership of Other Securities of the Company Owned by the Selling
Securityholder.
Except
as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable
Securities listed above in Item 3.
|
(a)
|
Type
and Amount of Other Securities beneficially owned by the Selling
Securityholder:
|
| ______________________________________________________ |
| ______________________________________________________ |
6. Relationships
with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any
other material relationship with the Company (or its predecessors or affiliates)
during the past three years.
State
any
exceptions here:
| ________________________________________________________________________________ |
| ________________________________________________________________________________ |
The
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
at any time while the Registration Statement remains effective.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 and the inclusion of such
information in the Registration Statement and the related prospectus. The
undersigned understands that such information will be relied upon by the Company
in connection with the preparation or amendment of the Registration Statement
and the related prospectus.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice
and Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
| Dated:______________________ | Beneficial Owner:_______________________________________ |
| By:__________________________________________________ | |
|
Name:___________________________________________
|
|
|
Title:_____________________________________
|
|
13
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
Xxxxxx
X.
Xxxxxxx, Esq.
Xxxxxx
Xxxxx LLP
0000
Xxxxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
14
