REGISTRATION RIGHTS AGREEMENT
Exhibit
4.28
EXHIBIT
B
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of May 10, 2007, between Ener1, Inc., a Florida
corporation (the “Issuer”)
and
each of the several purchasers signatory hereto (each such purchaser, a
“Purchaser”
and,
collectively, the “Purchasers”).
This
Agreement is made pursuant to the Securities Purchase Agreement, dated as
of the
date hereof, between the Issuer, Ener1 Group, Inc. (the “Company”)
and
each Purchaser (the “Purchase
Agreement”)
pursuant to which the Company is issuing to the Purchasers (A)10% Exchangeable
Debentures (the “Debentures”)
which
are exchangeable for shares of Common Stock held by the Company and (B) Common
Stock Purchase Warrants (the “Warrants”)
which
are exercisable into shares of Common Stock held by the Company.
The
Issuer shall directly benefit from the extension of credit to the Company
represented by the issuance of the Debentures.
The
Issuer and each Purchaser hereby agrees as follows:
1.
Definitions.
Capitalized
terms used and not otherwise defined herein that are defined in the Purchase
Agreement shall have the meanings given such terms in the Purchase
Agreement.
As used
in this Agreement, the following terms shall have the following
meanings:
“Advice”
shall
have the meaning set forth in Section 6(d).
“Effectiveness
Date”
means,
with respect to the Initial Registration Statement required to be filed
hereunder, the 90th calendar day (120th
in the
event of a review by the Commission) following the date hereof and, with
respect
to any additional Registration Statements which may be required pursuant
to
Section 3(c), the 90th calendar day (120th
in the
event of a review by the Commission) following the date on which the Issuer
is
first notified such additional Registration Statement is required to be filed
hereunder; provided,
however,
that in
the event the Issuer is notified by the Commission that one or more of the
above
Registration Statements will not be reviewed or is no longer subject to further
review and comments, the Effectiveness Date as to such Registration Statement
shall be the fifth Trading Day following the date on which the Issuer is
so
notified if such date precedes the dates otherwise required above.
“Effectiveness
Period”
shall
have the meaning set forth in Section 2(a).
“Event”
shall
have the meaning set forth in Section 2(b).
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“Event
Date”
shall
have the meaning set forth in Section 2(b).
“Filing
Date”
means,
with respect to the Initial Registration Statement required hereunder, the
30th
calendar
day following the date hereof and, with respect to any additional Registration
Statements which may be required pursuant to Section 3(c), the earliest
practicable date on which the Issuer is permitted by SEC Guidance to file
such
additional Registration Statement related to the Registrable
Securities.
“Holder”
or
“Holders”
means
the holder or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified
Party”
shall
have the meaning set forth in Section 5(c).
“Indemnifying
Party”
shall
have the meaning set forth in Section 5(c).
“Initial
Registration Statement”
means
the initial Registration Statement filed pursuant to this
Agreement.
“Initial
Shares”
means
a
number of Registrable Securities equal to the lesser of (i) the total number
of
Registrable Securities or (ii) one-third of the number of issued and outstanding
shares of Common Stock held by non-affiliates of the Issuer immediately prior
to
the filing date of the Initial Registration Statement.
“Losses”
shall
have the meaning set forth in Section 5(a).
“Plan
of Distribution”
shall
have the meaning set forth in Section 2(a).
“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 by the Commission pursuant to 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) all of the shares of Common Stock issuable upon exchange in full of the
Debentures (assuming on the date of determination the Debentures are exchanged
in full without regard to any exchange limitations therein), (ii) all shares
of
Common Stock issuable as interest or principal on the Debentures assuming
all
permissible interest and principal payments are made in shares of Common
Stock
and the Debentures are held until maturity, (iii) all Warrant Shares (assuming
on the date of determination the Warrants are exercised in full without regard
to any exercise limitations therein), (iv) any additional shares of Common
Stock
issuable in connection with any anti-dilution provisions in the Debentures
or
the Warrants (in each case, without giving effect to any limitations on exchange
set forth in the Debentures or limitations on exercise set forth in the Warrant)
and (v) any securities issued or issuable upon any stock split, dividend
or
other distribution, recapitalization or similar event with respect to the
foregoing.
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“Registration
Statement”
means
the registration statement required to be filed hereunder and any additional
registration statements contemplated by Section 3(c), including (in each
case)
the Prospectus, amendments and supplements to such registration statement
or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
“Rule
415”
means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as
such
Rule may be amended or interpreted from time to time, or any similar rule
or
regulation hereafter adopted by the Commission having substantially the same
purpose and effect as such Rule.
“Rule
424”
means
Rule 424 promulgated by the Commission pursuant to the Securities Act, as
such
Rule may be amended or interpreted from time to time, or any similar rule
or
regulation hereafter adopted by the Commission having substantially the same
purpose and effect as such Rule.
“Selling
Shareholder Questionnaire”
shall
have the meaning set forth in Section 3(a).
“SEC
Guidance”
means
(i) any publicly-available written or oral guidance, comments, requirements
or
requests of the Commission staff and (ii) the Securities Act.
2.
Shelf
Registration
(a)
On
or
prior to each Filing Date, the Issuer shall prepare and file with the Commission
a Registration Statement covering the resale of all or such portion of the
Registrable Securities as permitted by SEC Guidance (provided that the Issuer
shall use reasonable efforts to advocate with the Commission for the
registration of all of the Registrable Securities in accordance with the
SEC
Guidance, including without limitation, the Manual of Publicly Available
Telephone Interpretations D.29) that are not then registered on an effective
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415. The Registration Statement shall be on Form S-3 (except if the
Issuer is not then eligible to register for resale the Registrable Securities
on
Form S-3, in which case such registration shall be on another appropriate
form
in accordance herewith) and shall contain (unless otherwise directed by at
least
an 85% majority in interest of the Holders) substantially the “Plan
of Distribution”
attached hereto as Annex
A.
Subject
to the terms of this Agreement, the Issuer shall use its reasonable efforts
to
cause a Registration Statement to be declared effective under the Securities
Act
as promptly as possible after the filing thereof, but in any event prior
to the
applicable Effectiveness Date, and shall use its reasonable efforts to keep
such
Registration Statement continuously effective under the Securities Act until
all
Registrable Securities covered by such Registration Statement have been sold,
or
may be sold without volume restrictions pursuant to Rule 144(k) (assuming
any
Warrants then outstanding are exercised pursuant to the cashless exercise
provisions thereof), as determined by the counsel to the Issuer pursuant
to a
written opinion letter to such effect, addressed and acceptable to the Issuer’s
transfer agent (the “Effectiveness
Period”).
The
Issuer shall telephonically request effectiveness of a Registration Statement
as
of 5:00 p.m. New York City time on a Business Day. The Issuer shall immediately
notify the Holders via facsimile or by e-mail delivery of a “.pdf” format data
file of the effectiveness of a Registration Statement on the same Business
Day
that the Issuer telephonically confirms effectiveness with the Commission.
The
Issuer shall, by 9:30 a.m. New York City time on the Trading Day after the
Effective Date, file a final Prospectus with the Commission as required by
Rule
424. Failure to so notify the Holder within 1 Business Day of such notification
of effectiveness or failure to file a final Prospectus as foresaid shall
be
deemed an Event under Section 2(b). Notwithstanding
any other provision of this Agreement and subject to the payment of liquidated
damages in Section 2(b), if any SEC Guidance sets forth a limitation on the
number of Registrable Securities permitted to be registered on a particular
Registration Statement (and notwithstanding that the Issuer used reasonable
efforts to advocate with the Commission for the registration of all or a
greater
number of Registrable Securities), unless otherwise directed in writing by
a
Holder as to its Registrable Securities, the number of Registrable Securities
to
be registered on such Registration Statement will first be reduced by
Registrable Securities represented by Warrant Shares (applied, in the case
that
some Warrant Shares may be registered, to the Holders on a pro rata basis
based
on the total number of unregistered Warrant Shares held by such Holders),
and
second by Registrable Securities represented by Exchange Shares (applied,
in the
case that some Exchange Shares may be registered, to the Holders on a pro
rata
basis based on the total number of unregistered Exchange Shares held by such
Holders).
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(b) If:
(i)
the Initial Registration Statement is not filed on or prior to its Filing
Date
(if the Issuer files the Initial Registration Statement without affording
the
Holders the opportunity to review and comment on the same as required by
Section
3(a) herein, the Issuer shall be deemed to have not satisfied this clause
(i)),
or (ii) the Issuer fails to file with the Commission a request for acceleration
of a Registration Statement in accordance with Rule 461 promulgated by the
Commission pursuant to the Securities Act, within five Trading Days of the
date
that the Issuer is notified (orally or in writing, whichever is earlier)
by the
Commission that such Registration Statement will not be “reviewed” or will not
be subject to further review, or (iii) prior to the effective date of a
Registration Statement, the Issuer fails to file a pre-effective amendment
and
otherwise respond in writing to comments made by the Commission in respect
of
such Registration Statement within 20 Trading Days after the receipt of comments
by or notice from the Commission that such amendment is required in order
for
such Registration Statement to be declared effective, or (iv) as to, in the
aggregate among all Holders on a pro-rata basis based on their purchase of
the
Securities pursuant to the Purchase Agreement, a Registration Statement
registering for resale all of the Initial Shares is not declared effective
by
the Commission by the Effectiveness Date of the Initial Registration Statement,
or (v) all of the Registrable Securities are not registered for resale pursuant
to one or more effective Registration Statements on or before the six month
anniversary of the Effective Date of the Initial Registration Statement,
or (vi)
after the effective date of a Registration Statement, such Registration
Statement ceases for any reason to remain continuously effective as to all
Registrable Securities for which it is required to be effective, or the Holders
are otherwise not permitted to utilize the Prospectus therein to resell such
Registrable Securities (a) because the Issuer is negotiating a merger,
consolidation, acquisition or sale of all or substantially all of its assets
or
a similar transaction which, in the good faith judgment of the Issuer’s board of
directors, requires the Registration Statement to be amended to include
information in connection with such pending transaction (including the parties
thereto) and such information is not yet available or publicly disclosable,
for
more than an aggregate of 30 non-consecutive calendar days during any 12
month
period or (b) for any other reason, more than an aggregate of 60 non-consecutive
calendar days during any 12 month period (any such failure or breach being
referred to as an “Event”,
and
for purposes of clause (i), (iv) and (v) the date on which such Event occurs,
and for purpose of clause (ii) the date on which such five Trading Day period
is
exceeded, and for purpose of clause (iii) the date which such 10 Business
day
period is exceeded, and for purpose of clause (vi) the date on which such
30 or
60 calendar day period, as applicable, is exceeded being referred to as
“Event
Date”),
then,
in addition to any other rights the Holders may have hereunder or under
applicable law, on each monthly anniversary of each such Event Date (if the
applicable Event shall not have been cured by such date) until the applicable
Event is cured, the Issuer shall pay to each Holder an amount in cash, as
partial liquidated damages and not as a penalty, equal to 2% of the aggregate
purchase price paid by such Holder pursuant to the Purchase Agreement for
any
unregistered Registrable Securities then held by such Holder. The parties
agree
that the Issuer shall not be liable for liquidated damages under this Agreement
with respect to any Warrants or Warrant Shares. If the Issuer fails to pay
any
partial liquidated damages pursuant to this Section in full within seven
days
after the date payable, the Issuer will pay interest thereon at a rate of
18%
per annum (or such lesser maximum amount that is permitted to be paid by
applicable law) to the Holder, accruing daily from the date such partial
liquidated damages are due until such amounts, plus all such interest thereon,
are paid in full. The partial liquidated damages pursuant to the terms hereof
shall apply on a daily pro rata basis for any portion of a month prior to
the
cure of an Event.
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3.
Registration
Procedures.
In
connection with the Issuer’s registration obligations hereunder, the Issuer
shall:
(a) Not
less
than 5 Trading Days prior to the filing of each Registration Statement and
not
less than one Trading Day prior to the filing of any related Prospectus or
any
amendment or supplement thereto (including any document that would be
incorporated or deemed to be incorporated therein by reference), the Issuer
shall (i) furnish to each Holder copies of all such documents proposed to
be
filed, which documents (other than those incorporated or deemed to be
incorporated by reference) will be subject to the review of such Holders
and
(ii) cause its officers and directors, counsel and independent certified
public
accountants to respond to such inquiries as shall be necessary, in the
reasonable opinion of counsel to each Holder, to conduct a reasonable
investigation within the meaning of the Securities Act. The Issuer 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 good faith, provided that the Issuer
is
notified of such objection in writing no later than 5 Trading Days after
the
Holders have been so furnished copies of a Registration Statement or 1 Trading
Day after the Holders have been so furnished copies of any related Prospectus
or
amendments or supplements thereto. Each Holder agrees to furnish to the Issuer
a
completed questionnaire in the form attached to this Agreement as Annex
B
(a
“Selling
Shareholder Questionnaire”)
not
less than five Trading Days prior to the Filing Date or by the end of the
fourth
Trading Day following the date on which such Holder receives draft materials
in
accordance with this Section.
(b) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to a Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep a Registration Statement continuously
effective as to the applicable Registrable Securities for the 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 (subject to the terms
of this
Agreement), 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 a Registration Statement or any amendment
thereto and provide as promptly as reasonably possible to the Holders true
and
complete copies of all correspondence from and to the Commission relating
to a
Registration Statement (provided that the Issuer may excise any information
contained therein which would constitute material non-public information
as to
any Holder which has not executed a confidentiality agreement with the Issuer);
and (iv) comply in all material respects with the provisions of the Securities
Act and the Exchange Act with respect to the disposition of all Registrable
Securities covered by a Registration Statement during the applicable period
in
accordance (subject to the terms of this Agreement) with the intended methods
of
disposition by the Holders thereof set forth in such Registration Statement
as
so amended or in such Prospectus as so supplemented.
(c) Subject
to any limitation imposed by the SEC Guidance on the number of shares of
Common
Stock that may be registered on a Registration Statement, if during the
Effectiveness Period, the number of Registrable Securities at any time exceeds
100% of the number of shares of Common Stock then registered in a Registration
Statement, then the Issuer shall file as soon as reasonably practicable,
but in
any case prior to the applicable Filing Date, an additional Registration
Statement covering the resale by the Holders of not less than the number
of such
Registrable Securities.
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(d) Notify
the Holders of Registrable Securities to be sold (which notice shall, pursuant
to clauses (iii) through (vi) hereof, be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes have been made)
as
promptly as reasonably possible (and, in the case of (i)(A) below, not less
than
one Trading Day prior to such filing) and (if requested by any such Person)
confirm such notice in writing no later than one Trading Day following the
day
(i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed; (B) when the
Commission notifies the Issuer whether there will be a “review” of such
Registration Statement and whenever the Commission comments in writing on
such
Registration Statement; and (C) with respect to a Registration Statement
or any
post-effective amendment, when the same has become effective; (ii) of any
request by the Commission or any other federal or state governmental authority
for amendments or supplements to a Registration Statement or Prospectus or
for
additional information; (iii) of the issuance by the Commission or any other
federal or state governmental authority 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; (iv) of
the
receipt by the Issuer 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; (v) of the occurrence of any event or passage
of
time that makes the financial statements included in a Registration Statement
ineligible for inclusion therein or any statement made in a 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 a Registration Statement, Prospectus or other
documents so that, in the case of a Registration Statement or the Prospectus,
as
the case may be, it will not contain any untrue statement of a material fact
or
omit to state any material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading; and (vi) of the occurrence or existence of any pending
corporate development with respect to the Issuer that the Issuer believes
may be
material and that, in the determination of the Issuer, makes it not in the
best
interest of the Issuer to allow continued availability of a Registration
Statement or Prospectus, provided that any and all of such information shall
remain confidential to each Holder until such information otherwise becomes
public, unless disclosure by a Holder is required by law; provided,
further,
that
notwithstanding each Holder’s agreement to keep such information confidential,
each such Holder makes no acknowledgement that any such information is material,
non-public information.
(e) Use
its
reasonable efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of (i) any order stopping or 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.
(f) Furnish
to each Holder, without charge, at least one conformed copy of each such
Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference to the extent requested by such Person,
and
all exhibits to the extent requested by such Person (including those previously
furnished or incorporated by reference) promptly after the filing of such
documents with the Commission; provided, that any such item which is available
on the XXXXX system need not be furnished in physical form.
6
(g) Subject
to the terms of this Agreement, the Issuer hereby consents to the use of
such
Prospectus and each amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto, except
after
the giving of any notice pursuant to Section 3(d).
(h)
If
required by NASD (as defined below) to permit the resale by a Holder of the
Registrable Securities in any manner set forth in the Plan of Distribution
attached hereto as Annex
A,
the
Issuer shall effect a filing with respect to the public offering contemplated
by
each Registration Statement (an “Issuer
Filing”)
with
the National Association of Securities Dealers, Inc. (“NASD”)
Corporate Financing Department pursuant to NASD Rule 2710 as described in
proposed NASD Rule 2710(b)(10)(A)(i) within one Trading Day of the date that
the
Registration Statement is first filed with the Commission and pay the filing
fee
required by such Issuer Filing. The Issuer shall use commercially reasonable
efforts to pursue the Issuer Filing until the NASD issues a letter confirming
that it does not object to the terms of the offering contemplated by the
Registration Statement as described in the Plan of Distribution attached
hereto
as Annex
A.
A copy
of the Issuer Filing and all related correspondence to or from the NASD with
respect thereto shall be provided to FWS.
(i) Prior
to
any resale of Registrable Securities by a Holder, use its commercially
reasonable efforts to register or qualify or cooperate with the selling Holders
in connection with the registration or qualification (or exemption from the
Registration or qualification) of such Registrable Securities for the resale
by
the Holder under the securities or Blue Sky laws of such jurisdictions within
the United States as any Holder reasonably requests in writing, to keep each
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by each Registration Statement; provided, that the Issuer
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, subject the Issuer to any material tax
in any
such jurisdiction where it is not then so subject or file a general consent
to
service of process in any such jurisdiction.
(j) If
requested by a Holder, cooperate with such Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
to
be delivered to a transferee pursuant to a Registration Statement, which
certificates shall be free, to the extent permitted by the Purchase Agreement,
of all restrictive legends, and to enable such Registrable Securities to
be in
such denominations and registered in such names as any such Holder may
request.
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(k) Upon
the
occurrence of any event contemplated by Section 3(d), as promptly as reasonably
possible under the circumstances taking into account the Issuer’s good faith
assessment of any adverse consequences to the Issuer and its stockholders
of the
premature disclosure of such event, prepare a supplement or amendment, including
a post-effective amendment, to a 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 a Registration Statement nor such Prospectus
will
contain an untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary to make the statements therein,
in
light of the circumstances under which they were made, not
misleading. If
the
Issuer notifies the Holders in accordance with clauses (iii) through (vi)
of
Section 3(d) above to suspend the use of any Prospectus until the requisite
changes to such Prospectus have been made, then the Holders shall suspend
use of
such Prospectus. The Issuer will use its best efforts to ensure that the
use of
the Prospectus may be resumed as promptly as is practicable. The Issuer shall
be
entitled to exercise its right under this Section 3(k) to suspend the
availability of a Registration Statement and Prospectus, subject to the payment
of partial liquidated damages otherwise required pursuant to Section 2(b),
for a
period not to exceed 60 calendar days (which need not be consecutive days)
in
any 12 month period.
(l) Comply
with all applicable rules and regulations of the Commission.
(m) The
Issuer may require each selling Holder to furnish to the Issuer a certified
statement as to the number of shares of Common Stock beneficially owned by
such
Holder and, if required by the Commission, the natural persons thereof that
have
voting and dispositive control over the shares. During any periods that the
Issuer is unable to meet its obligations hereunder with respect to the
registration of the Registrable Securities solely because any Holder (i)
fails
to furnish such information within three Trading Days of the Issuer’s request,
(ii) fails to deliver the Selling Shareholder Questionnaire within the time
periods required pursuant to Section 3(a) or (iii) objects to the Registration
Statement pursuant to Section 3(a) and the Company uses commercially reasonable
efforts to address such objections, any liquidated damages that are accruing
at
such time as to such Holder only shall be tolled and any Event that may
otherwise occur solely because of such delay shall be suspended as to such
Holder only, until such information is delivered to the Issuer or such
objections are addressed by the Company (and the Company continues to use
commercially reasonable efforts to address such objections).
4.
Registration
Expenses.
All
fees and expenses incident to the performance of or compliance with this
Agreement by the Issuer shall be borne by the Issuer 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 of the Issuer’s counsel and auditors) (A) with respect to
filings made with the Commission, (B) with respect to filings required to
be
made with any Trading Market on which the Common Stock is then listed for
trading, (C) in compliance with applicable state securities or Blue Sky laws
reasonably agreed to by the Issuer in writing (including, without limitation,
fees and disbursements of counsel for the Issuer in connection with Blue
Sky
qualifications or exemptions of the Registrable Securities) and (D) if not
previously paid by the Issuer in connection with an Issuer Filing, with respect
to any filing that may be required to be made by any broker through which
a
Holder intends to make sales of Registrable Securities with the NASD pursuant
to
NASD Rule 2710, so long as the broker is receiving no more than a customary
brokerage commission in connection with such sale, (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities), (iii) messenger, telephone and delivery expenses,
(iv)
fees and disbursements of counsel for the Issuer, (v) Securities Act liability
insurance, if the Issuer so desires such insurance, and (vi) fees and expenses
of all other Persons retained by the Issuer in connection with the consummation
of the transactions contemplated by this Agreement. In addition, the Issuer
shall be responsible for all of its internal expenses incurred in connection
with the consummation of the transactions contemplated by this Agreement
(including, without limitation, all salaries and expenses of its officers
and
employees performing legal or accounting duties), the expense of any annual
audit and the fees and expenses incurred in connection with the listing of
the
Registrable Securities on any securities exchange as required hereunder.
In no
event shall the Issuer be responsible for any broker or similar commissions
of
any Holder or, except to the extent provided for in the Transaction Documents,
any legal fees or other costs of the Holders.
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5.
Indemnification.
(a) Indemnification
by the Issuer.
The
Issuer shall, notwithstanding any termination of this Agreement, indemnify
and
hold harmless each Holder, the officers, directors, members, partners, agents,
brokers (including brokers who offer and sell Registrable Securities as
principal as a result of a pledge or any failure to perform under a margin
call
of Common Stock), investment advisors and employees (and any other Persons
with
a functionally equivalent role of a Person holding such titles, notwithstanding
a lack of such title or any other title) 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, members,
shareholders, partners, agents and employees (and any other Persons with
a
functionally equivalent role of a Person holding such titles, notwithstanding
a
lack of such title or any other title) of each such controlling Person, to
the
fullest extent permitted by applicable law, from and against any and all
losses,
claims, damages, liabilities, costs (including, without limitation, reasonable
attorneys’ fees) and expenses (collectively, “Losses”),
as
incurred, arising out of or relating to (1) any untrue or alleged untrue
statement of a material fact contained in a 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
supplement thereto, in light of the circumstances under which they were made)
not misleading or (2) any violation or alleged violation by the Issuer of
the
Securities Act, the Exchange Act or any state securities law, or any rule
or
regulation thereunder, in connection with the performance of its obligations
under this Agreement, except to the extent, but only to the extent, that
(i)
such untrue statements or omissions are based solely upon information regarding
such Holder furnished in writing to the Issuer 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 a
Registration Statement, such Prospectus or in any amendment or supplement
thereto (it being understood that the Holder has approved Annex A hereto
for
this purpose) or (ii) in the case of an occurrence of an event of the type
specified in Section 3(d)(iii)-(vi), the use by such Holder of an outdated
or
defective Prospectus after the Issuer has notified such Holder in writing
that
the Prospectus is outdated or defective and prior to the receipt by such
Holder
of the Advice contemplated in Section 6(d). The Issuer shall notify the Holders
promptly of the institution, threat or assertion of any Proceeding arising
from
or in connection with the transactions contemplated by this Agreement of
which
the Issuer is aware.
(b) Indemnification
by Holders.
Each
Holder shall, severally and not jointly, indemnify and hold harmless the
Issuer,
its directors, officers, agents and employees, each Person who controls the
Issuer (within the meaning of Section 15 of the Securities Act and Section
20 of
the Exchange Act), and the directors, officers, agents or employees of such
controlling Persons, to the fullest extent permitted by applicable law, from
and
against all Losses, as incurred, to the extent arising out of or based solely
upon: (x) such Holder’s failure to comply with the prospectus delivery
requirements of the Securities Act or (y) any untrue or alleged untrue statement
of a material fact contained in any Registration Statement, any Prospectus,
or
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
not misleading (i) to the extent, but only to the extent, that such untrue
statement or omission is contained in any information so furnished in writing
by
such Holder to the Issuer specifically for inclusion in such Registration
Statement or such Prospectus or (ii) to the extent that such information
relates
to 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 a Registration Statement (it being understood that such Holder has approved
Annex A hereto for this purpose), such Prospectus or in any amendment or
supplement thereto or (ii) in the case of an occurrence of an event of the
type
specified in Section 3(d)(iii)-(vi), the use by such Holder of an outdated
or
defective Prospectus after the Issuer has notified such Holder in writing
that
the Prospectus is outdated or defective and prior to the receipt by such
Holder
of the Advice contemplated in Section 6(d). 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.
9
(c) Conduct
of Indemnification Proceedings.
If any
Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified
Party”),
such
Indemnified Party shall promptly notify the Person from whom indemnity is
sought
(the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall have the right to assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except (and only)
to the
extent that 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 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 counsel to the Indemnified Party shall
reasonably believe that a material conflict of interest is likely to exist
if
the same counsel were to represent such Indemnified Party and the Indemnifying
Party (in which case, if such Indemnified Party notifies the Indemnifying
Party
in writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense thereof and the reasonable fees and expenses of no more than
one
separate 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, which consent shall not be unreasonably
withheld or delayed. 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.
Subject
to the terms of this Agreement, all reasonable fees and expenses of the
Indemnified Party (including reasonable fees and expenses to the extent incurred
in connection with investigating or preparing to defend such Proceeding in
a
manner not inconsistent with this Section) shall be paid to the Indemnified
Party, as incurred, within ten Trading Days of written notice thereof to
the
Indemnifying Party; provided, that the Indemnified Party shall promptly
reimburse the Indemnifying Party for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is judicially
determined to be not entitled to indemnification hereunder.
10
(d) Contribution.
If the
indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified
Party or insufficient to hold an Indemnified Party harmless for any Losses,
then
each Indemnifying Party shall contribute to the amount paid or payable by
such
Indemnified Party, 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 this Agreement, any reasonable attorneys’ or other 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.
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.
Notwithstanding the provisions of this Section 5(d), no Holder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which
the
net proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that
such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
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.
Miscellaneous.
(a) Remedies.
In the
event of a breach by the Issuer or by a Holder of any of their respective
obligations under this Agreement, each Holder or the Issuer, 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, shall be entitled to specific
performance of its rights under this Agreement. The Issuer 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 not assert or shall waive
the
defense that a remedy at law would be adequate.
(b) No
Piggyback on Registrations; Prohibition on Filing Other Registration
Statements.
Except
as set forth on Schedule
6(b)
attached
hereto, neither the Issuer nor any of its security holders (other than the
Holders in such capacity pursuant hereto) may include securities of the Issuer
in any Registration Statements other than the Registrable Securities. During
the
Effectiveness Period, the Issuer shall not file any other registration
statements until all Registrable Securities are registered pursuant to a
Registration Statement that is declared effective by the Commission, provided
that this Section 6(b) shall not prohibit the Issuer from filing amendments
to
registration statements filed prior to the date of this Agreement.
11
(c) 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 a Registration Statement.
(d) Discontinued
Disposition.
By its
acquisition of Registrable Securities, each Holder agrees that, upon receipt
of
a notice from the Issuer of the occurrence of any event of the kind described
in
Section 3(d)(iii) through (vi), such Holder will forthwith discontinue
disposition of such Registrable Securities under a Registration Statement
until
it is advised in writing (the “Advice”)
by the
Issuer that the use of the applicable Prospectus (as it may have been
supplemented or amended) may be resumed. The Issuer will use its best efforts
to
ensure that the use of the Prospectus may be resumed as promptly as it
practicable. The Issuer agrees and acknowledges that any periods during which
the Holder is required to discontinue the disposition of the Registrable
Securities hereunder shall be subject to the provisions of Section
2(b).
(e) 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 Issuer shall
determine to prepare and file with the Commission a registration statement
relating to an offering for its own account or the account of others under
the
Securities Act of any of its equity securities, other than on Form S-4 or
Form
S-8 (each as promulgated under the Securities Act) or their then equivalents
relating to equity securities to be issued solely in connection with any
acquisition of any entity or business or equity securities issuable in
connection with the Issuer’s stock option or other employee benefit plans, then
the Issuer shall deliver to each Holder a written notice of such determination
and, if within fifteen days after the date of the delivery of such notice,
any
such Holder shall so request in writing, the Issuer shall include in such
registration statement all or any part of such Registrable Securities such
Holder requests to be registered; provided,
however,
that
the Issuer shall not be required to register any Registrable Securities pursuant
to this Section 6(e) that are eligible for resale pursuant to Rule 144(k)
promulgated by the Commission pursuant to the Securities Act or that are
the
subject of a then effective Registration Statement.
(f) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence,
may not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Issuer and the Holders of a majority of the then outstanding
Registrable Securities (including, for this purpose any Registrable Securities
issuable upon exercise or exchange of any Security). If a Registration Statement
does not register all of the Registrable Securities pursuant to a waiver
or
amendment done in compliance with the previous sentence, then the number
of
Registrable Securities to be registered for each Holder shall be reduced
pro
rata among all Holders and each Holder shall have the right to designate
which
of its Registrable Securities shall be omitted from such Registration Statement.
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
a
Holder or some Holders and that does not directly or indirectly affect the
rights of other Holders may be given by such Holder or Holders of all of
the
Registrable Securities to which such waiver or consent relates; provided,
however,
that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the first sentence of this Section
6(f).
12
(g) Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be delivered as set forth in the Purchase Agreement.
(h) 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 Issuer may not assign (except by merger) its rights or obligations
hereunder without the prior written consent of all of the Holders of the
then
outstanding Registrable Securities. Each Holder may assign their respective
rights hereunder in the manner and to the Persons as permitted under the
Purchase Agreement.
(i) No
Inconsistent Agreements.
Neither
the Issuer nor any of its Subsidiaries has entered, as of the date hereof,
nor
shall the Issuer or any of its Subsidiaries, on or after the date of this
Agreement, enter into any agreement with respect to its securities, that
would
have the effect of impairing the rights granted to the Holders in this Agreement
or otherwise conflicts with the provisions hereof. Except as set forth on
Schedule
6(i),
neither
the Issuer nor any of its Subsidiaries has previously entered into any agreement
granting any registration rights with respect to any of its securities to
any
Person that have not been satisfied in full.
(j) Execution
and Counterparts.
This
Agreement may be executed in two or more counterparts, all of which when
taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered
to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on
whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
(k) Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be determined in accordance with the provisions of
the
Purchase Agreement.
(l) Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any other remedies
provided by law.
(m) Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth
herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that
may be
hereafter declared invalid, illegal, void or unenforceable.
13
(n) Headings.
The
headings in this Agreement are for convenience only, do not constitute a
part of
the Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
(o) Independent
Nature of Holders’ Obligations and Rights.
The
obligations of each Holder hereunder are several and not joint with the
obligations of any other Holder hereunder, and no Holder shall be responsible
in
any way for the performance of the obligations of any other Holder hereunder.
Nothing contained herein or in any other agreement or document delivered
at any
closing, and no action taken by any Holder pursuant hereto or thereto, shall
be
deemed to constitute the Holders as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Holders
are in any way acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Holder shall be entitled
to
protect and enforce its rights, including without limitation the rights arising
out of this Agreement, and it shall not be necessary for any other Holder
to be
joined as an additional party in any proceeding for such purpose.
********************
14
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
| ENER1, INC. | ||
| |
|
|
| Date: | By: | /s/ |
|
Name: |
||
| Title: | ||
[SIGNATURE
PAGE OF HOLDERS FOLLOWS]
15
[SIGNATURE
PAGE OF HOLDERS TO ENEI RRA]
Name
of
Holder: __________________________
Signature
of Authorized Signatory of Holder:
__________________________
Name
of
Authorized Signatory: _________________________
Title
of
Authorized Signatory: __________________________
[SIGNATURE
PAGES CONTINUE]
16
Annex
A
Plan
of Distribution
Each
Selling Stockholder (the “Selling
Stockholders”)
of the
common stock and any of their pledgees, assignees and successors-in-interest
may, from time to time, sell any or all of their shares of common stock on
the
OTC Bulletin Board or any other stock exchange, market or trading facility
on
which the shares are traded or in private transactions. These sales may be
at
fixed or negotiated prices. A Selling Stockholder may use any one or more
of the
following methods when selling shares:
| · |
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
| · |
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
| · |
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
| · |
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
| · |
privately
negotiated transactions;
|
| · |
settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a part;
|
| · |
broker-dealers
may agree with the Selling Stockholders to sell a specified number
of such
shares at a stipulated price per share;
|
| · |
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or
otherwise;
|
| · |
a
combination of any such methods of sale;
or
|
| · |
any
other method permitted pursuant to applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act of 1933, as amended (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, but,
except as set forth in a supplement to this Prospectus, in the case of an
agency
transaction not in excess of a customary brokerage commission in compliance
with
NASDR Rule 2440; and in the case of a principal transaction a markup or markdown
in compliance with NASDR IM-2440.
17
In
connection with the sale of the common stock or interests therein, the Selling
Stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of the common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The Selling
Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or
more
derivative securities which require the delivery to such broker-dealer or
other
financial institution of shares offered by this prospectus, which shares
such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
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. Each Selling Stockholder has informed
the
Issuer that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the Common Stock. In
no
event shall any broker-dealer receive fees, commissions and markups which,
in
the aggregate, would exceed eight percent (8%).
The
Issuer is required to pay certain fees and expenses incurred by the Issuer
incident to the registration of the shares. The Issuer has agreed to indemnify
the Selling Stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
Because
Selling Stockholders may be deemed to be “underwriters” within the meaning of
the Securities Act, they will be subject to the prospectus delivery requirements
of the Securities Act including Rule 172 thereunder. In addition, any securities
covered by this prospectus which qualify for sale pursuant to Rule 144 under
the
Securities Act may be sold under Rule 144 rather than under this prospectus.
There is no underwriter or coordinating broker acting in connection with
the
proposed sale of the resale shares by the Selling Stockholders.
We
agreed
to keep this prospectus effective until the earlier of (i) the date on which
the
shares may be resold by the Selling Stockholders without registration and
without regard to any volume limitations by reason of Rule 144(k) under the
Securities Act or any other rule of similar effect or (ii) all of the shares
have been sold pursuant to this prospectus or Rule 144 under the Securities
Act
or any other rule of similar effect. The resale shares will be sold only
through
registered or licensed brokers or dealers if required under applicable state
securities laws. In addition, in certain states, the resale shares may not
be
sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement
is
available and is complied with.
18
Under
applicable rules and regulations under the Exchange Act, any person engaged
in
the distribution of the resale shares may not simultaneously engage in market
making activities with respect to the common stock for the applicable restricted
period, as defined in Regulation M, prior to the commencement of the
distribution. In addition, the Selling Stockholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of purchases
and
sales of shares of the common stock by the Selling Stockholders or any other
person. We will make copies of this prospectus available to the Selling
Stockholders and have informed them of the need to deliver a copy of this
prospectus to each purchaser at or prior to the time of the sale (including
by
compliance with Rule 172 under the Securities Act).
19
Annex
B
ENER1,
INC.
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of common stock (the “Registrable
Securities”)
of
Ener1, Inc., a Florida corporation (the “Issuer”),
understands that the Issuer has filed or intends to file with the Securities
and
Exchange Commission (the “Commission”)
a
registration statement (the “Registration
Statement”)
for
the registration and resale under Rule 415 of the Securities Act of 1933,
as
amended (the “Securities
Act”),
of
the Registrable Securities, in accordance with the terms of the Registration
Rights Agreement (the “Registration
Rights Agreement”)
to
which this document is annexed. A copy of the Registration Rights Agreement
is
available from the Issuer 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 in the Registration Statement.
20
The
undersigned hereby provides the following information to the Issuer 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 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 this
Questionnaire):
|
2.
Address for Notices to Selling Securityholder:
|
Telephone:
|
|
|
Fax:
|
|
|
Contact
Person:
|
3.
Broker-Dealer Status:
|
(a)
|
Are
you a broker-dealer?
|
Yes
o No
o
|
(b)
|
If
“yes” to Section 3(a), did you receive your Registrable Securities as
compensation for investment banking services to the
Issuer?
|
Yes
o No
o
|
Note:
|
If
“no” to Section 3(b), the Commission’s staff has indicated that you should
be identified as an underwriter in the Registration
Statement.
|
21
|
(c)
|
Are
you an affiliate of a
broker-dealer?
|
Yes
o No
o
|
(d)
|
If
you are an affiliate of a broker-dealer, do you certify that you
purchased
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
o No
o
|
Note:
|
If
“no” to Section 3(d), the Commission’s staff has indicated that you should
be identified as an underwriter in the Registration
Statement.
|
4.
Beneficial Ownership of Securities of the Issuer Owned by the Selling
Securityholder.
Except
as set forth below in this Item 4, the undersigned is not the beneficial
or
registered owner of any securities of the Issuer other than the securities
issuable pursuant to the Purchase Agreement.
|
(a)
|
Type
and Amount of other securities beneficially owned by the Selling
Securityholder:
|
22
5.
Relationships with the Issuer:
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 Issuer (or its predecessors or affiliates)
during the past three years.
State
any
exceptions here:
The
undersigned agrees to promptly notify the Issuer 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 5 and the inclusion of
such
information in the Registration Statement and the related prospectus
and
any
amendments or supplements thereto.
The
undersigned understands that such information will be relied upon by the
Issuer
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.
| Date: _______________________________ | Beneficial Owner: __________________________ |
| By: ____________________________ | |
|
Name: Title: |
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
23
