Registration Rights Agreement
Exhibit
10.3
This
Registration Rights Agreement (the "Agreement")
is
made and entered into as of June 3, 2008 (the "Effective
Date")
among
Triangle Petroleum Corporation, a Nevada corporation (the "Company"),
the
parties set forth Exhibit
A
hereto
(each, a "Purchaser"
and
collectively, the "Purchasers"),
and
Canaccord Xxxxx Inc., a Massachusetts corporation ("Canaccord"), which is acting
as agent for each of the Purchasers.
R
e c i t a l s:
The
Purchasers have purchased units (“Units”)
from
the Company pursuant to Subscription Agreements (each, a "Subscription
Agreement"
and
collectively, the "Subscription
Agreements")
by and
between the Company and each Purchaser. Each Unit consists of one share of
common stock of the Company (the “Shares”)
and
one-half of a warrant (the "Warrants"),
each
whole Warrant entitling the holder to purchase one share of common stock at
$2.25 per share (the “Warrant
Shares”),
at
any time during the two years following the Closing Date.
The
Company and the Purchasers desire to set forth the registration rights to be
granted by the Company to the Purchasers.
Now,
Therefore,
in
consideration of the mutual promises, representations, warranties, covenants,
and conditions set forth herein, in the Subscription Agreements, or otherwise,
the parties mutually agree as follows:
A
g r e e m e n t:
1. Certain
Definitions.
As used
in this Agreement, the following terms shall have the following respective
meanings:
"Approved
Market"
means
the Nasdaq National Market, the Nasdaq SmallCap Market, the New York Stock
Exchange, Inc., the American Stock Exchange, Inc., the OTC Bulletin Board,
the
Toronto Stock Exchange or the Toronto Stock Exchange Venture.
"Blackout
Period"
means,
with respect to a registration, a period in each case commencing on the day
immediately after the Company notifies the Purchasers and Canaccord that they
are required, pursuant to Section 4(f), to suspend offers and sales of
Registrable Securities during which the Company, in the good faith judgment
of
its Board of Directors, determines (because of the existence of, or in
anticipation of, any acquisition, financing activity, or other transaction
involving the Company, or the unavailability for reasons beyond the Company's
control of any required financial statements, disclosure of information which
is
in its best interest not to publicly disclose, or any other event or condition
of similar significance to the Company) that the registration and distribution
of the Registrable Securities to be covered by such registration statement,
if
any, would be seriously detrimental to the Company and its shareholders and
ending on the earlier of (1) the date upon which the material non-public
information commencing the Blackout Period is disclosed to the public or ceases
to be material and (2) such time as the Company notifies the selling Holders
that the Company will no longer delay such filing of the Registration Statement,
recommence taking steps to make such Registration Statement effective, or allow
sales pursuant to such Registration Statement to resume; provided,
however,
that (a)
the Company shall limit its use of Blackout Periods, in the aggregate, to 60
Trading Days in any 12-month period and (b) no Blackout Period may commence
sooner than 60 days after the end of a prior Blackout Period.
"Business
Day"
means
any day of the year, other than a Saturday, Sunday, or other day on which the
Commission is required or authorized to close.
"Closing
Date"
means
June 3, 2008, or such other time as is mutually agreed between the Company
and
the Purchasers for the closing of the sale referred to in Recital A
above.
"Commission"
means
the Securities and Exchange Commission or any other federal agency at the time
administering the Securities Act.
"Common
Stock"
means
the common stock, $.00001 par value per share, of the Company and any and all
shares of capital stock or other equity securities of: (i) the Company which
are
added to or exchanged or substituted for the Common Stock by reason of the
declaration of any stock dividend or stock split, the issuance of any
distribution or the reclassification, readjustment, recapitalization, or other
such modification of the capital structure of the Company; and (ii) any other
corporation, now or hereafter organized under the laws of any state or other
governmental authority, with which the Company is merged, which results from
any
consolidation or reorganization to which the Company is a party, or to which
is
sold all or substantially all of the shares or assets of the Company, if
immediately after such merger, consolidation, reorganization, or sale, the
Company or the stockholders of the Company own equity securities having in
the
aggregate more than 50% of the total voting power of such other
corporation.
"Equity
Securities"
means
(i) any Common Stock, (ii) any security convertible, with or without
consideration, into any Common Stock (including any option to purchase such
a
convertible security), (iii) any security carrying any warrant or right to
subscribe to or purchase any Common Stock, or (iv) any such warrant or
right.
"Exchange
Act"
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder.
"Family
Member"
means
(a) with respect to any individual, such individual's spouse, any descendants
(whether natural or adopted), any trust all of the beneficial interests of
which
are owned by any of such individuals or by any of such individuals together
with
any organization described in Section 501(c)(3) of the Internal Revenue Code
of
1986, as amended, the estate of any such individual, and any corporation,
association, partnership, or limited liability company all of the equity
interests of which are owned by those above described individuals, trusts,
or
organizations and (b) with respect to any trust, the owners of the beneficial
interests of such trust.
"Form
S-1"
and
"Form
S-3"
mean
such forms under the Securities Act as in effect on the date hereof.
"Holder"
means
each Purchaser, or any successor or Permitted Assignee of a Purchaser, who
acquire rights in accordance with this Agreement with respect to the Registrable
Securities directly or indirectly from a Purchaser, including from any Permitted
Assignee.
"Inspector"
means
any attorney, accountant, or other agent retained by a Purchaser for the
purposes provided in Section 4(j).
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"Offering
Price"
means
the price at which the Units have been sold to the Purchasers pursuant to the
Subscription Agreements.
"Permitted
Assignee"
means
(a) with respect to a partnership, its partners or former partners in
accordance with their partnership interests, (b) with respect to a
corporation, its shareholders in accordance with their interest in the
corporation, (c) with respect to a limited liability company, its members
or former members in accordance with their interest in the limited liability
company, (d) with respect to an individual party, any Family Member of such
party, (e) an entity that is controlled by, controls, or is under common control
with a transferor, or (f) a party to this Agreement.
The
terms
"register,"
"registered,"
and
"registration"
refers
to a registration effected by preparing and filing a registration statement
in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registrable
Securities"
means
the Warrant Shares excluding
(A) any
Registrable Securities that have been publicly sold or may be publicly sold
immediately without registration under the Securities Act either pursuant to
Rule 144(b) of the Securities Act or otherwise; (B) any Registrable Securities
sold by a person in a transaction pursuant to a registration statement filed
under the Securities Act; or (C) any Registrable Securities that are at the
time
subject to an effective registration statement under the Securities Act.
"Registration
Default Date"
means
the date 150 days after the Closing Date.
"Registration
Default Period"
means
the period following the Registration Default Date during which any Registration
Event occurs and is continuing.
"Registration
Event"
means
the occurrence of any of the following events:
(a) the
Registration Statement covering Registrable Securities is not declared effective
by the Commission on or before the Registration Default Date,
(b) after
the
SEC Effective Date, sales cannot be made pursuant to the Registration Statement
for any reason (including without limitation by reason of a stop order, or
the
Company's failure to update the Registration Statement) but except as excused
pursuant to Section 3(a) or excused for the reasons specified in clause (c),
or
(c) the
Common Stock generally or the Registrable Securities specifically are not listed
or included for quotation on an Approved Market, or trading of the Common Stock
is suspended or halted on the Approved Market, which at the time constitutes
the
principal market for the Common Stock, for more than two full, consecutive
Trading Days; provided,
however,
a
Registration Event shall not be deemed to occur if all or substantially all
trading in equity securities (including the Common Stock) is suspended or halted
on the Approved Market for any length of time.
"Registration
Statement"
means
the registration statement required to be filed by the Company pursuant to
Section 3(a).
"Rule
415"
means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same purpose and
effect as such Rule.
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"Securities
Act"
means
the Securities Act of 1933, as amended, or any similar federal statute
promulgated in replacement thereof, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the
time.
"SEC
Effective Date"
means
the date the Registration Statement is declared effective by the
Commission.
"Trading
Day"
means a
day on which (a) the national securities exchange, (b) the Nasdaq Stock Market,
or (c) such other securities market, in any such case which at the time
constitutes the principal securities market for the Common Stock, is open for
general trading of securities.
2. Term.
This
Agreement shall continue in full force and effect for a period of two (2) years
from the Effective Date, unless terminated sooner hereunder.
3. Registration.
(a) Registration
on Form S-1 or Form S-3.
As
promptly as reasonably practicable after the date hereof, and within 60 days
following the Closing Date, the Company shall file with the Commission a shelf
registration statement on Form S-1, or, if available, Form S-3 relating to
the
resale by the Holders of all of the Registrable Securities; provided,
however,
that
the Company shall not be obligated to effect any such registration,
qualification, or compliance pursuant to this Section 3(a), or keep such
registration effective pursuant to Section 4: (i) in any particular jurisdiction
in which the Company would be required to qualify to do business as a foreign
corporation or as a dealer in securities under the securities or blue sky laws
of such jurisdiction (or to execute a general consent to service of process)
in
effecting such registration, qualification, or compliance, in each case where
it
has not already done so; or (ii) during any Blackout Period.
(b) Failure
to File Registration Statement.
If a
Registration Event occurs, then the Company will make payments to each Purchaser
as partial liquidated damages for the minimum amount of damages to the Purchaser
by reason thereof, and not as a penalty, at a rate equal to one
percent (1.0%) of the Offering Price per
Unit
held
by such Purchaser per month, for each calendar month of the Registration Default
Period or portion thereof, provided that partial liquidated damages shall not
be
paid with respect to those Registrable Securities which cannot be registered
under Rule 415 solely as a result of action by the Commission. The partial
liquidated damages shall not exceed an aggregate of 5.0% of the aggregate
purchase price paid by the Purchasers pursuant to this Agreement. Each such
payment shall be due and payable within five days after the end of each calendar
month of the Registration Default Period until the termination of the
Registration Default Period and within five days after such termination. Such
payments shall be in partial compensation to the Purchaser, and shall not
constitute the Purchaser's exclusive remedy for such events. The Registration
Default Period shall terminate upon (i) the SEC Effective Date in the case
of
clause (a) of the definition of "Registration Event," (ii) the ability of the
Purchaser to effect sales pursuant to the Registration Statement in the case
of
clause (b) of the definition of "Registration Event," and (iii) the listing
or
inclusion and/or trading
of the Common Stock on an Approved Market, as the case may be, in the case
of
clause (c) of the definition of "Registration Event." The amounts payable as
partial liquidated damages pursuant to this paragraph shall be payable in lawful
money of the United States. Amounts payable as partial liquidated damages to
each Purchaser hereunder with respect to each share of Registrable Securities
shall cease when the Purchaser no longer holds such share of Registrable
Securities.
4. Registration
Procedures.
In the
case of each registration effected by the Company pursuant to Section 3 hereof,
the Company will keep each Holder reasonably advised in writing (which may
include e-mail) as to the initiation of each registration and as to the
completion thereof. With respect to any registration statement filed pursuant
to
Section 3, the Company will use its commercially reasonable best efforts to:
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(a) prepare
and file with the Commission with respect to such Registrable Securities, a
registration statement on Form S-1, or any other form for which the Company
then
qualifies or which counsel for the Company shall deem appropriate, and which
form shall be available for the sale of the Registrable Securities in accordance
with the intended method(s) of distribution thereof, and use its commercially
reasonable efforts to cause such registration statement to become effective
as
soon as possible and remain effective at least for a period ending with the
first to occur of (i) the sale of all Registrable Securities covered by the
registration statement, or (ii) two years after the Closing Date (in each case,
the
"Effectiveness Period");
provided
that no
later than two business days before filing with the Commission a registration
statement or prospectus or any amendments or supplements thereto, the Company
shall (i) furnish to (A) one special counsel ("Holders'
Counsel")
selected by the Company for the benefit of the Holders, copies of all such
documents proposed to be filed (excluding any exhibits other than applicable
underwriting documents), in substantially the form proposed to be filed, which
documents shall be subject to the review of such Holders' Counsel, and (ii)
notify each Holder of Registrable Securities covered by such registration
statement of any stop order issued or threatened by the Commission and take
all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered. Each Holder, severally and not jointly agrees to furnish to
the
Company a completed Questionnaire in the form attached to this Agreement as
Exhibit B (a “Selling
Holder Questionnaire”)
not
more than ten Trading Days after the Closing Date;
(b) if
a
registration statement is subject to review by the Commission, promptly respond
to all comments and diligently pursue resolution of any comments to the
satisfaction of the Commission;
(c) prepare
and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may
be
necessary to keep such registration statement effective during the Effectiveness
Period (but in any event at least until expiration of the 90-day period referred
to in Section 4(3) of the Securities Act and Rule 174, or any successor thereto,
thereunder, if applicable), and comply with the provisions of the Securities
Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended method(s) of
disposition by the sellers thereof set forth in such registration
statement;
(d) furnish,
without charge, to each Holder of Registrable Securities covered by such
registration statement (i) a reasonable number of copies of such registration
statement (including any exhibits thereto other than exhibits incorporated
by
reference), each amendment and supplement thereto as such Holder may request,
(ii) such number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and any other prospectus filed
under Rule 424 under the Securities Act) as such Holders may request, in
conformity with the requirements of the Securities Act, and (iii) such other
documents as such Holder may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Holder, but only during
the Effectiveness Period;
(e) register
or qualify such Registrable Securities under such other applicable securities
or
blue sky laws of such jurisdictions as any Holder of Registrable Securities
covered by such registration statement reasonably requests as may be necessary
for the marketability of the Registrable Securities within the United States
(such request to be made by the time the applicable registration statement
is
deemed effective by the Commission) and do any and all other acts and things
which may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such Holder; provided
that the
Company shall not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph (e), (ii) subject itself to taxation in any such jurisdiction, or
(iii) consent to general service of process in any such
jurisdiction;
5
(f) as
promptly as practicable after becoming aware of such event, notify each Holder
of such Registrable Securities at any time when a prospectus relating thereto
is
required to be delivered under the Securities Act of the happening of any event
which comes to the Company's attention if as a result of such event the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and the
Company shall promptly prepare and furnish to such Holder a supplement or
amendment to such prospectus (or prepare and file appropriate reports under
the
Exchange Act) so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an 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 not misleading, unless suspension
of
the use of such prospectus otherwise is authorized herein or in the event of
a
Blackout Period, in which case no supplement or amendment need be furnished
(or
Exchange Act filing made) until the termination of such suspension or Blackout
Period;
(g) comply,
and continue to comply during the period that such registration statement is
effective under the Securities Act, in all material respects with the Securities
Act and the Exchange Act and with all applicable rules and regulations of the
Commission with respect to the disposition of all securities covered by such
registration statement, and make available to its security holders, as soon
as
reasonably practicable, an earnings statement covering the period of at least
12
months, but not more than 18 months, beginning with the first full calendar
month after the SEC Effective Date, which earnings statement shall satisfy
the
provisions of Section 11(a) of the Securities Act.
(h) as
promptly as practicable after becoming aware of such event, notify each Holder
of Registrable Securities being offered or sold pursuant to the Registration
Statement of the issuance by the Commission of any stop order or other
suspension of effectiveness of the Registration Statement at the earliest
possible time;
(i) permit
the Holders of Registrable Securities being included in the Registration
Statement and their legal counsel, at such Holder's sole cost and expense
(except as otherwise specifically provided in Section 6) to review and have
a
reasonable opportunity to comment on the Registration Statement and all
amendments and supplements thereto at least two Business Days prior to their
filing with the Commission;
(j)
make
available for inspection by any Holder and any Inspector retained by such
Holder, at such Holder's sole expense, all records as shall be reasonably
necessary to enable such Holder to exercise its due diligence responsibility,
and cause the Company's officers, directors, and employees to supply all
information which such Holder or any Inspector may reasonably request for
purposes of such due diligence; provided,
however, that
such
Holder shall hold in confidence and shall not make any disclosure of any
information which the Company determines in good faith to be confidential,
and
of which determination such Holder is so notified at the time such Holder
receives such information, unless (i) the disclosure of such information is
necessary to avoid or correct a misstatement or omission in the Registration
Statement and a reasonable time prior to such disclosure the Holder shall have
informed the Company of the need to so correct such misstatement or omission
and
the Company shall have failed to correct such misstatement of omission, (ii)
the
release of such information is ordered pursuant to a subpoena or other order
from a court or governmental body of competent jurisdiction, or (iii) the
information has been made generally available to the public other than by
disclosure in violation of this agreement. The Company shall not be required
to
disclose any confidential information to any Inspector until and unless such
Inspector shall have entered into a confidentiality agreement with the Company
with respect thereto, substantially in the form of this Section 4(j). Each
Holder agrees that it shall, upon learning that disclosure of such information
is sought in or by a court or governmental body of competent jurisdiction or
through other means, give prompt notice to the Company and allow the Company,
at
the Company's expense, to undertake appropriate action to prevent disclosure
of,
or to obtain a protective order for, the information deemed confidential. The
Company shall hold in confidence and shall not make any disclosure of
information concerning a Holder provided to the Company pursuant to this
Agreement unless (i) disclosure of such information is necessary to comply
with
federal or state securities laws, (ii) disclosure of such information to the
Staff of the Division of Corporation Finance is necessary to respond to comments
raised by the Staff in its review of the Registration Statement, (iii)
disclosure of such information is necessary to avoid or correct a misstatement
or omission in the Registration Statement, (iv) release of such information
is
ordered pursuant to a subpoena or other order from a court or governmental body
of competent jurisdiction, or (v) such information has been made generally
available to the public other than by disclosure in violation of this agreement.
The Company agrees that it shall, upon learning that disclosure of such
information concerning a Holder is sought in or by a court or governmental
body
of competent jurisdiction or through other means, give prompt notice to such
Holder and allow such Holder, at such Holder's expense, to undertake appropriate
action to prevent disclosure of, or to obtain a protective order for, such
information;
6
(k) use
its
best efforts to cause all the Registrable Securities covered by the Registration
Statement to be listed or quoted on the principal securities market on which
securities of the same class or series issued by the Company are then listed
or
traded;
(l) provide
a
transfer agent and registrar, which may be a single entity, for the Registrable
Securities at all times;
(m) cooperate
with the Holders of Registrable Securities being offered pursuant to the
Registration Statement to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing Registrable
Securities to be offered pursuant to the Registration Statement and enable
such
certificates to be in such denominations or amounts as the Holders may
reasonably request and registered in such names as the Holders may request;
and
(n) take
all
other reasonable actions necessary to expedite and facilitate disposition by
the
Holders of the Registrable Securities pursuant to the Registration
Statement.
5. Suspension
of Offers and Sales.
Each
Holder of Registrable Securities agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
4(f)
hereof or of the commencement of an Blackout Period, such Holder shall
discontinue disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Holder's receipt
of
the copies of the supplemented or amended prospectus contemplated by Section
4(f) hereof or notice of the end of the Blackout Period, and, if so directed
by
the Company, such Holder shall deliver to the Company (at the Company's expense)
all copies (including, without limitation, any and all drafts), other than
permanent file copies, then in such Holder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the period
mentioned in Section 4(a)(iii) hereof shall be extended by the greater of (i)
ten business days or (ii) the number of days during the period from and
including the date of the giving of such notice pursuant to Section 4(f) hereof
to and including the date when each Holder of Registrable Securities covered
by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by Section 4(f) hereof.
6. Registration
Expenses.
The
Company shall pay all expenses in connection with any registration, including,
without limitation, all registration, filing, stock exchange and NASD fees,
printing expenses, all fees and expenses of complying with securities or blue
sky laws and the fees and disbursements of counsel for the Company and of its
independent accountants; provided that, in any underwritten registration, each
party shall pay for its own underwriting discounts and commissions and transfer
taxes. In no event shall the Company be responsible for any broker or similar
commissions or any legal fees or other costs of the Holders.
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7. Assignment
of Rights.
No
Holder may assign its rights under this Agreement to any party without the
prior
written consent of the Company; provided,
however,
that a
Holder may assign its rights under this Agreement without such restrictions
to a
Permitted Assignee as long as (a) such transfer or assignment is effected in
accordance with applicable securities laws; (b) such transferee or assignee
agrees in writing to become subject to the terms of this Agreement; and (c)
the
Company is given written notice by such Holder of such transfer or assignment,
stating the name and address of the transferee or assignee and identifying
the
Registrable Securities with respect to which such rights are being transferred
or assigned.
8. Information
by Holder.
The
Holder or Holders of Registrable Securities included in any registration shall
furnish to the Company such information regarding such Holder or Holders and
the
distribution proposed by such Holder or Holders as the Company may request
in
writing.
9. Delay
of Registration.
No
Holder shall have any right to obtain or seek an injunction restraining or
otherwise delaying any registration pursuant to this Agreement as the result
of
any controversy that might arise with respect to the interpretation or
implementation of this Agreement.
10. Indemnification.
(a) In
the
event of the offer and sale of Registrable Securities held by Holders under
the
Securities Act, the Company shall, and hereby does, indemnify and hold harmless,
to the fullest extent permitted by law, each Holder, its directors, officers,
partners, each other person who participates as an underwriter in the offering
or sale of such securities, and each other person, if any, who controls or
is
under common control with such Holder or any such underwriter within the meaning
of Section 15 of the Securities Act, against any losses, claims, damages, or
liabilities, joint or several, and expenses to which the Holder or any such
director, officer, partner, or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages, liabilities, or expenses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such shares were registered under the
Securities Act, any preliminary prospectus, final prospectus, or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Company shall
reimburse the Holder, and each such director, officer, partner, underwriter,
and
controlling person for any legal or any other expenses reasonably incurred
by
them in connection with investigating, defending, or settling any such loss,
claim, damage, liability, action, or proceeding; provided that the foregoing
shall not apply to, and the Company shall not be liable, in any such case (i)
to
the extent that any such loss, claim, damage, liability (or action or proceeding
in respect thereof), or expense arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
such registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment, or supplement in reliance upon and in conformity
with written information furnished to the Company through an instrument duly
executed by or on behalf of such Holder specifically stating that it is for
use
in the preparation thereof, (ii) provided that the Company has complied with
its
obligations hereunder to furnish such Holder with copies of the applicable
prospectus, if the person asserting any such loss, claim, damage, or liability
(or action or proceeding in respect thereof) who purchased the Registrable
Securities that are the subject thereof did not receive a copy of an amended
preliminary prospectus or the final prospectus (or the final prospectus as
amended or supplemented) at or prior to the written confirmation of the sale
of
such Registrable Securities to such person because of the failure of such Holder
or underwriter to so provide such amended preliminary or final prospectus and
the untrue statement or alleged untrue statement or omission or alleged omission
of a material fact made in such preliminary prospectus was corrected in the
amended preliminary or final prospectus (or the final prospectus as amended
or
supplemented), or (iii) provided that the plan of distribution mechanics
described in the applicable prospectus are, in form and substance, reasonable
and customary for transactions of this type, to the extent that the Holders
failed to comply with the terms of such plan of distribution mechanics. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Holders, or any such director, officer, partner,
underwriter, or controlling person and shall survive the transfer of such shares
by the Holder.
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(b) As
a
condition to including any Registrable Securities to be offered by a Holder
in
any registration statement filed pursuant to this Agreement, each such Holder
agrees to be bound by the terms of this Section 10 and to indemnify and hold
harmless, to the fullest extent permitted by law, the Company, its directors
and
officers, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act, legal counsel and accountants
for
the Company, any underwriter, any other Holder selling securities in such
registration statement, and any controlling person within the meaning of the
Securities Act of any such underwriter or other Holder, against any losses,
claims, damages, or liabilities, joint or several, to which the Company or
any
such director or officer or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages, or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon (i) an untrue statement or
alleged untrue statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus, or summary
prospectus contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information about such Holder
as a
Holder of the Company furnished to the Company, (ii) provided that the Company
has complied with its obligations hereunder to furnish such Holder with copies
of the applicable prospectus, if the person asserting any such loss, claim,
damage, or liability (or action or proceeding in respect thereof) who purchased
the Registrable Securities that are the subject thereof did not receive a copy
of an amended preliminary prospectus or the final prospectus (or the final
prospectus as amended or supplemented) at or prior to the written confirmation
of the sale of such Registrable Securities to such person because of the failure
of such Holder or underwriter to so provide such amended preliminary or final
prospectus and the untrue statement or alleged untrue statement or omission
or
alleged omission of a material fact made in such preliminary prospectus was
corrected in the amended preliminary or final prospectus (or the final
prospectus as amended or supplemented), or (iii) provided that the plan of
distribution mechanics described in the applicable prospectus are, in form
and
substance, reasonable and customary for transactions of this type, to the extent
that the Holders failed to comply with the terms of such plan of distribution
mechanics. Such indemnity shall remain in full force and effect regardless
of
any investigation made by or on behalf of the Holders, or any such director,
officer, partner, underwriter, or controlling person and shall survive the
transfer of such shares by the Holder, and such Holder shall reimburse the
Company, and each such director, officer, legal counsel and accountants,
underwriter, other Holder, and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating,
defending, or settling and such loss, claim, damage, liability, action, or
proceeding; provided,
however,
that
such indemnity agreement found in this Section 10(b) shall in no event exceed
the gross proceeds from the offering received by such Holder. Such indemnity
shall remain in full force and effect, regardless of any investigation made
by
or on behalf of the Company or any such director, officer, or controlling person
and shall survive the transfer by any Holder of such shares.
9
(c) Promptly
after receipt by an indemnified party of notice of the commencement of any
action or proceeding involving a claim referred to in Section 10(a) or (b)
hereof (including any governmental action), such indemnified party shall, if
a
claim in respect thereof is to be made against an indemnifying party, give
written notice to the indemnifying party of the commencement of such action;
provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under Section
10(a) or (b) hereof, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action
is
brought against an indemnified party, unless in the reasonable judgment of
counsel to such indemnified party a conflict of interest between such
indemnified and indemnifying parties may exist or the indemnified party may
have
defenses not available to the indemnifying party in respect of such claim,
the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not
be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties arises in respect of such claim after
the
assumption of the defenses thereof or the indemnifying party fails to defend
such claim in a diligent manner, other than reasonable costs of investigation.
Neither an indemnified nor an indemnifying party shall be liable for any
settlement of any action or proceeding effected without its consent. No
indemnifying party shall, without the consent of the indemnified party, consent
to entry of any judgment or enter into any settlement, which does not include
as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim
or
litigation. Notwithstanding anything to the contrary set forth herein, and
without limiting any of the rights set forth above, in any event any party
shall
have the right to retain, at its own expense, counsel with respect to the
defense of a claim.
(d) In
the
event that an indemnifying party does or is not permitted to assume the defense
of an action pursuant to Section 10(c) or in the case of the expense
reimbursement obligation set forth in Section 10(a) and (b), the indemnification
required by Section 10(a) and (b) hereof shall be made by periodic payments
of
the amount thereof during the course of the investigation or defense, as and
when bills received or expenses, losses, damages, or liabilities are
incurred.
(e) If
the
indemnification provided for in this Section 10 is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any
loss,
liability, claim, damage, or expense referred to herein, the indemnifying party,
in lieu of indemnifying such indemnified party hereunder, shall (i) contribute
to the amount paid or payable by such indemnified party as a result of such
loss, liability, claim, damage, or expense as is appropriate to reflect the
proportionate relative fault of the indemnifying party on the one hand and
the
indemnified party on the other (determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission
relates to information supplied by the indemnifying party or the indemnified
party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such untrue statement or omission), or (ii)
if
the allocation provided by clause (i) above is not permitted by applicable
law
or provides a lesser sum to the indemnified party than the amount hereinafter
calculated, not only the proportionate relative fault of the indemnifying party
and the indemnified party, but also the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other,
as
well as any other relevant equitable considerations. No indemnified party guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any indemnifying party
who was not guilty of such fraudulent misrepresentation.
(f) Other
Indemnification.
Indemnification similar to that specified in the preceding subsections of this
Section 10 (with appropriate modifications) shall be given by the Company and
each Holder of Registrable Securities with respect to any required registration
or other qualification of securities under any federal or state law or
regulation or governmental authority other than the Securities
Act.
10
11. Miscellaneous.
(a) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York and the United States of America, both substantive and
remedial. Any judicial proceeding brought hereto shall be brought in the courts
of the State of New York, New York County, or in the United States District
Court for the Southern District of New York and, by its execution and delivery
of this agreement, each party to this Agreement accepts the jurisdiction of
such
courts. The foregoing consent to jurisdiction shall not be deemed to confer
rights on any person other than the parties to this Agreement.
(b) Successors
and Assigns.
Except
as otherwise provided herein, the provisions hereof shall inure to the benefit
of, and be binding upon, the successors, Permitted Assigns, executors, and
administrators of the parties hereto. In the event the Company merges with,
or
is otherwise acquired by, a direct or indirect subsidiary of a publicly traded
company, the Company shall condition the merger or acquisition on the assumption
by such parent company of the Company's obligations under this Agreement.
(c) Entire
Agreement.
This
Agreement constitutes the full and entire understanding and agreement between
the parties with regard to the subjects hereof.
(d) Notices,
etc.
All
notices or other communications which are required or permitted under this
Agreement shall be in writing and sufficient if delivered by hand, by facsimile
transmission, by registered or certified mail, postage pre-paid, by electronic
mail, or by courier or overnight carrier, to the persons at the addresses set
forth below (or at such other address as may be provided hereunder), and shall
be deemed to have been delivered as of the date so delivered:
|
If
to the Company:
|
Triangle
Petroleum Corporation
|
|
000
- 0 Xxxxxx X.X., Xxxxx 0000
|
|
|
Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
|
|
|
Attention:
Xxxx Xxxxxxxxx
|
|
|
Facsimile:
(000) 000-0000
|
|
|
e-mail:
xxxx@xxxxxxxxxxxxxxxxx.xxx
|
|
|
with
a copy to:
|
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
|
|
00
Xxxxxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Attention:
Xxxxxx X. Xxxx, Esq.
|
|
|
Facsimile:
(000) 000-0000
|
|
|
e-mail:
xxxxx@xxxx.xxx
|
|
|
If
to the Purchasers:
|
To
each Purchaser at the address
|
|
set
forth on Exhibit A
|
|
|
with
a copy to:
|
Canaccord
Xxxxx Inc.
|
|
Xxxxx
Fargo Plaza
|
|
|
0000
Xxxxxxxxx, 00xx Xxxxx
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
Attention:
Xxxxxxxxx Xxxxxx
|
|
|
Facsimile:
(000) 000-0000
|
|
|
e-mail:
xxxxx.xxxxxx@xxxxxxxxxxxxxx.xxx
|
or
at
such other address as any party shall have furnished to the other parties in
writing.
11
(e) Delays
or Omissions.
No
delay or omission to exercise any right, power, or remedy accruing to any Holder
of any Registrable Securities, upon any breach or default of the Company under
this Agreement, shall impair any such right, power, or remedy of such Holder
nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereunder
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring.
Any
waiver, permit, consent, or approval of any kind or character on the part of
any
Holder of any breach or default under this Agreement, or any waiver on the
part
of any Holder of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in
such
writing. All remedies, either under this Agreement, or by law or otherwise
afforded to any holder, shall be cumulative and not alternative.
(f) Titles
and Subtitles.
The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
(g) Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
enforceable against the parties actually executing such counterparts, and all
of
which together shall constitute one instrument.
(h) Severability.
In the
case any provision of this Agreement shall be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
(i) Amendments.
The
provisions of this Agreement may be amended at any time and from time to time,
and particular provisions of this Agreement may be waived, with and only with
an
agreement or consent in writing signed by the Company and by the holders of
a
majority of the number of shares of Registrable Securities outstanding as of
the
date of such amendment or waiver. The Purchasers acknowledge that by the
operation of this Section 11(i), the holders of a majority of the outstanding
Registrable Securities may have the right and power to diminish or eliminate
all
rights of the Purchasers under this Agreement.
|
(j)
|
Limitation
on Subsequent Registration Rights.
After the date of this Agreement, the Company shall not, without
the prior
written consent of the Holders of at least a majority of the Registrable
Share then outstanding, enter into any agreement with any holder
or
prospective holder of any securities of the Company that would grant
such
holder registration rights senior to those granted to the Holder
hereunder.
|
[signature
page follows]
12
This
Registration Rights Agreement is hereby executed as of the date first above
written.
|
COMPANY:
|
|
|
TRIANGLE
PETROLEUM CORPORATION
|
|
|
By:
|
/s/
XXXX XXXXXXXXX
|
|
Xxxx
Xxxxxxxxx
|
|
|
Chief
Executive Officer
|
|
|
HOLDERS:
|
|
|
CANACCORD
XXXXX INC., Individually
and as Agent and Attorney in Fact for the Purchasers listed on Exhibit
A
attached hereto
|
|
|
By:
|
/s/
XXXXXXXXX X. XXXXXX
|
|
Xxxxxxxxx
X. Xxxxxx
|
|
|
Principal
- Investment Banking
|
|
13
Exhibit
A
Purchaser
Information
|
Canaccord
Capital Corporation ITF 2035718 Ontario Inc. acct
447-323F-1
|
|
Insiders
Trend Fund LP
|
|
RBC
Dexia Investor Services Trust in trust for account
000-000-000
|
|
RBC
Dexia Investor Services Trust in trust for account
000-000-000
|
|
RBC
Dexia Investor Services Trust in trust for account
000-000-000
|
|
RBC
Dexia Investor Services Trust in trust for account
000-000-000
|
|
Cormark
Securities Inc.
|
|
RBC
Dexia Investor Services Trust in trust for account
000-000-000
|
|
Scotia
Capital Inc. in trust for account 403 00692
|
|
RBC
Dexia Investor Services Trust in trust for account
000-000-000
|
|
DB
for 106-07240 Xxxx Xxxxxxxxx Foundation Sprott Asset Management,
Inc.
|
|
Xxx
X. Xxxxxx
|
|
Xxxxxx
Xxxxxx Family LTD Partnership
|
|
Northern
Valley Partners, LLC
|
|
Xxxxx
X. Xxxxxxxx
|
|
Xxxx
Xxxxxxxxx
|
|
Luxor
Capital Partners, LP
|
|
Luxor
Spectrum Offshore, Ltd.
|
|
Luxor
Spectrum, LLC
|
|
LCG
Select Offshore, Ltd.
|
|
LCG
Select, LLC
|
|
Luxor
Capital Partners Offshore, Ltd.
|
|
Atlas
Master Fund Limited
|
|
NBCN
Inc. ITF a/c #26AA50U
|
|
BMO
Xxxxxxx Xxxxx Inc. ITF a/c #000-00000-00
|
|
Jayvee
& Co ITF a/c #YCEF1162002
|
|
NBCN
Inc. ITF a/c #26AA06U
|
|
J.
Xxxxxx Xxxxxxxx
|
|
Xxxxxxx
Global Natural Resources Partners, LP c/o Chilton Investment Company,
LLC
General Partner
|
|
Xxxxxxx
X. Xxxxxxxx
|
|
BMO
Xxxxxxx Xxxxx Inc. A/C Ref: 000-00000-00 (North Pole Capital Master
Fund)
|
Exhibit
B
TRIANGLE
PETROLEUM CORPORATION
SELLING
STOCKHOLDERS’ QUESTIONNAIRE
The
following information is requested from you in connection with the preparation
and filing by Triangle Petroleum Corporation (the “Company”) of a Registration
Statement on Form S-3 or other appropriate form (the “Registration Statement”)
with the Securities and Exchange Commission (the “SEC”) covering the sale of
shares of the Company’s common stock underlying Warrants by certain
stockholders.
We
would
appreciate your answering all of the questions included in this questionnaire,
even though your answers may be in the negative, so that the Company will have
a
record of your responses for use in connection with the preparation of the
Registration Statement. It
is
requested that you give careful attention to each question and that you complete
this questionnaire personally.
In
order
to assist you in completing this questionnaire, certain terms used herein are
defined in the appendix which is attached to this questionnaire. Each of such
defined terms has been bolded
and italicized
for
identification. The term “person,” as used in this questionnaire, means any
natural person, company, government or political subdivision, agency or
instrumentality of a government.
After
you have completed the following questionnaire, please send the completed
questionnaire by facsimile ((000) 000-0000) or overnight courier as soon as
possible to the attention of Xxxxx X. Xxxxxx at Sichenzia Xxxx Xxxxxxxx Xxxxxxx
LLP, 00 Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
*********************
General
Information
1. Please
provide your full name and address or the full name and address of the entity
on
whose behalf you are completing this questionnaire. The address may be a
business, mailing or residence address.
Name:
_____________________________________________________________________________________________
Address:
___________________________________________________________________________________________
2.
Name
the Control Person of your organization:
______________________________________________________
B-1
Securities
Holdings
1. Please
fill in all blanks in the following questions related to your beneficial
ownership
of the
Company’s common stock. Generally, the term “beneficial
ownership”
refers
to any direct or indirect interest in the securities which entitles you to
any
of the rights or benefits of ownership, even though you may not be the holder
of
record of the securities. For example, securities held in “street name” over
which you exercise voting or investment power would be considered beneficially
owned
by you.
Other examples of indirect ownership include ownership by a partnership in
which
you are a partner or by an estate or trust of which you or any member of your
immediate
family
is a
beneficiary. Ownership of securities held in the names of your spouse, minor
children or other relatives who live in the same household may be attributed
to
you.
If
you
have any reason to believe that any interest in securities of the Company which
you may have, however remote, is a beneficial interest, please describe such
interest. For purposes of responding to this questionnaire, it is preferable
to
err on the side of inclusion rather than exclusion. Where the SEC’s
interpretation of beneficial
ownership
would
require disclosure of you interest or possible interest in certain securities
of
the Company, and you believe that you do not actually possess the attributes
of
beneficial
ownership,
an
appropriate response is to disclose the interest and at the same time disclaim
beneficial
ownership
of the
securities.
Please
indicate the amount of common stock of the Company or any of its subsidiaries
which you beneficially
owned
as of
the date hereof.
For
each
holding:
|
·
|
State
the nature of the holding (i.e.,
held in your own name, jointly, as a trustee or beneficiary of a
trust, as
a custodian, as an executor, in discretionary accounts, by your spouse
or
minor children, by a partnership of which you are a partner, etc.),
and
|
|
·
|
State
whether you are the beneficial
owner
by
reason of (i) sole voting power, (ii) shared voting power, (iii)
sole
investment power, (iv) shared investment power, (v) the right to
acquire
stock within 60 days of the end of the calendar year, and/or (vi)
the
right to acquire stock with the purpose of changing or influencing
control.
|
|
·
|
Indicate
in the Remarks column whether you have sole or shared voting or investment
power with respect to any such securities, and in what capacity
(i.e.,
individual, general partner, trustee) you have such power or
powers.
|
|
·
|
If
you wish to disclaim beneficial
ownership
of
any shares listed, so indicate by writing the word “Disclaim” in the
Remarks column below; and you understand that such shares will be
shown
separately from your beneficial holdings and an appropriate disclaimer
set
forth.
|
|
·
|
If
any of the shares listed are subject to any claim, encumbrance, pledge
or
lien, so indicate in the Remarks
column.
|
B-2
|
Number
of
Shares
|
Registered
in
the
Name of
|
Beneficially
Owned
by
|
Remarks
|
Shares Voted
|
Shares to be Sold
|
|||||||||||
|
________
|
_____________
|
_____________
|
_____________
|
________
|
________
|
|||||||||||
|
________
|
_____________
|
_____________
|
_____________
|
________
|
________
|
|||||||||||
|
________
|
_____________
|
_____________
|
_____________
|
________
|
________
|
|||||||||||
|
________
|
_____________
|
_____________
|
_____________
|
________
|
________
|
|||||||||||
|
________
|
_____________
|
_____________
|
_____________
|
________
|
________
|
|||||||||||
|
________
|
_____________
|
_____________
|
_____________
|
________
|
________
|
|||||||||||
|
________
|
_____________
|
_____________
|
_____________
|
________
|
________
|
|||||||||||
|
_________
|
_______________
|
_______________
|
_______________
|
_________
|
_________
|
|||||||||||
B-3
2. 5%
Stockholders
To
the
best of my knowledge, all persons (including myself and my associates
and
including corporations, partnerships, trusts, associations and other such
groups) who beneficially
own
more
than 5% of any class of the Company’s stock are described below:
|
Name
of
Beneficial
Owner
|
Class
of Shares
Beneficially
Owned
|
Holder
of
Voting
or
Investment
Power
|
B-4
No
Adverse Interest
All
interests I or my associates
have or
will have that are adverse to the Company interests in any pending or
contemplated legal proceeding or government investigation to which the Company
is or will be a party (or to which its property may be subject) are described
below:
B-5
Voting
Arrangement
All
voting trusts or similar agreements or arrangements
of which
I have knowledge under which more than 5% of the Company’s outstanding common
stock, on an as converted basis, is held or to be held are described below:
|
Names
and Addresses of Voting Trustees
|
Voting
Rights and Other Powers
Under
Trust, Agreement or Arrangement
|
|
B-6
Change
in Control
All
arrangements
of which
I have knowledge, including any pledge by any person of securities of the
Company, the operations of which may at a subsequent date result in a change
in
control
of the
Company, are described below:
B-7
Transactions
with the Company
1. Information
regarding all material
interests of yours or your associates in any actual or proposed transaction
during the last three fiscal years to which the Company was or is to be a party
and that are identified under “Securities Holdings” above) is provided below.
Further,
no such transaction need be described if:
(a) the
amount involved (including all periodic installments in the case of any lease
or
other agreement provided for periodic payments or installments and including
the
value of all transactions In a series of similar transactions) does not exceed
$60,000;
(b) the
rates
or charges involved in the transaction are fixed by law or governmental
authority or determined by competitive bids;
(c) the
services involved are as a bank depositary of funds, transfer agent, registrar,
trustee under a trust indenture or other similar service;
(d) my
interest arises solely from my ownership of securities of the Company and I
received no extra or special benefit not shared on a pro rata basis by all
other
holders of securities in the same class;
(e) my
interest in the corporation that is a party to the transaction is solely as
a
director; or
(f) my
interest arose solely as an officer and/or director of the Company (e.g., my
compensation arrangement with the Company).
Description:
B-8
Affiliation
with Accountants or attorneys
Described
below is any interest, affiliation or connection you have with the firm of
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, Xxxxxxx Xxxxxxx LLP, KPMG LLP or any other
law firm or accounting firm that has been retained by the Company during the
last three fiscal years or is proposed to be retained by the Company:
B-9
Contracts
with the Company
Described
below are all contracts with the Company or in which the Company has a
beneficial interest, or to which the Company has succeeded by assumption or
assignment, to which you or any of your associates
is a
party, which are to be performed in whole or in part at or after the date of
the
proposed filing of the Registration Statement, or which were made not more
than
two years prior thereto:
B-10
NASD-RELATED
QUESTIONS
(1) Are
you
(i) a “member” of the National Association of Securities Dealers, Inc.
(“NASD”),
(ii)
an “affiliate” of a member of the NASD, (iii) a “person associated with a
member” or “associated person of a member” of the NASD or (iv) associated with
an “underwriter or related person” with respect to the proposed initial public
offering for the Company?
Yes o
No o
For
the
sole purpose of this Question: (i) the NASD defines a “member” as being either
any broker or dealer admitted to membership in the NASD or any officer or
partner of such a member or the executive representative of such member or
the
substitute for such representative; (ii) the term “affiliate” means a person
that directly, or indirectly through one or more intermediaries, controls,
or is
controlled by, or is in common control with the person specified. Persons who
have acted or are acting on behalf or for the benefit of a person include,
but
are not necessarily limited to, directors, officers, employees, agents,
consultants and sales representatives; (iii) the NASD defines a “person
associated with a member” or “associated person of a member” as being every sole
proprietor, partner, officer, director or branch manager of any member, or
any
natural person occupying a similar status or performing similar functions,
or
any natural person engaged in the investment banking or securities business
who
is directly or indirectly controlling or controlled by such member (for example,
any employee), whether or not any such person is registered or exempt from
registration with the NASD; and (iv) the term “underwriter or related person”
includes, with respect to a proposed offering, underwriters, underwriters’
counsel, financial consultants and advisers, finders, members of the selling
or
distribution group, and any and all other persons associated with or related
to
any such persons.
If
yes,
kindly describe such relationship (whether direct or indirect) and please
respond to Questions (2) and (3) below; if no, please proceed to Question
(4).
(2) Please
set forth information as to all purchases and acquisitions (including contracts
for purchase or acquisition) of securities of the Company by you, regardless
of
the time acquired or the source from which derived:
|
Seller
or
|
Amount
and
|
Price
or Other
|
||||
|
Prospective
Seller
|
Nature
of Securities
|
Consideration
|
Date
|
(3) In
connection with your direct or indirect affiliation or association with a
“member” of the NASD as set forth above in Question (1), please furnish the
identity of such NASD member and any information, if known, as to whether such
NASD member intends to participate in any capacity in this proposed initial
public offering, including the details of such participation:
B-11
(4) Please
describe any underwriting compensation and arrangement or any dealings known
to
you between any “underwriter or related person”, “member” of the NASD,
“affiliate” of a member of the NASD, “person associated with a member”, or
“associated person of a member” of the NASD on the one hand and the Company or
controlling shareholder thereof on the other hand, other than information
relating to the proposed initial public offering of the Company:
(5) Please
set out below any information, if known, as to whether any “member” of the NASD,
any “underwriter or related person”, “affiliate” or a member of the NASD,
“person associated with a member” or “associated person of a member” of the NASD
may receive any portion of the net offering:
B-12
I
understand that material misstatements or the omission of material facts in
the
Registration Statement may give rise to civil and criminal liabilities to the
Company, to each officer and director of the Company signing the Registration
Statement and other persons signing the Registration Statement. I will notify
you and the Company of any misstatement of a material fact in the Registration
Statement or any amendment thereto, and of the omission of any material fact
necessary to make the statements contained therein not misleading, as soon
as
practicable after a copy of the Registration Statement or any such amendment
has
been provided to me.
I
confirm
that the foregoing statements are correct, to the best of my knowledge and
belief.
Dated: _____________________.
|
(Signature)
|
B-13
Definitions
The
term
“arrangement”
means
any plan, contract, authorization or understanding whether or not set forth
in a
formal document.
The
term
“associate”
as
used
throughout this questionnaire, means (a) any corporation or organization (other
than the Company) of which I am an officer, director or partner or of which
I
am, directly or indirectly, the beneficial owner of 5% or more of any class
of
equity securities, (b) any trust or other estate in which I have a substantial
beneficial interest or as to which I serve as trustee or in a similar capacity,
(c) my spouse, (d) any relative of my spouse or any relative of mine who has
the
same home as me or who is a director or officer or key executive of the Company,
(e) any partner, syndicate member or person with whom I have agreed to act
in
concert with respect to the acquisition, holding, voting or disposition of
shares of the Company’s securities.
The
term
“beneficially
owned”
when
used in connection with the ownership of securities, means (a) any interest
in a
security which entitles me to any of the rights or benefits of ownership even
though I may not be the owner of record or (b) securities owned by me directly
or indirectly, including those held by me for my own benefit (regardless of
how
registered) and securities held by others for my benefit (regardless of how
registered), such as by custodians, brokers, nominees, pledgees, etc., and
including securities held by an estate or trust in which I have an interest
as
legatee or beneficiary, securities owned by a partnership of which I am a
partner, securities held by a personal holding company of which I am a
stockholder, etc., and securities held in the name of my spouse, minor children
and any relative (sharing the same home). A “beneficial owner” of a security
includes any person who, directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise has or
shares:
(a) voting
power which includes the power to vote, or to direct the voting of, such
security; and/or
(b) investment
power which includes the power to dispose, or to direct the disposition, of
such
security.
The
term
“control”
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person, whether through the
ownership of voting securities, by contract or otherwise.
The
term
“immediate
family”
means
any relationship by blood, marriage or adoption, not more remote than first
cousin.
The
term
“material,”
when
used in this questionnaire to qualify a requirement for the furnishing of
information as to any subject, limits the information required to those matters
as to which an average prudent investor ought reasonably to be informed before
purchasing the Common Stock of the Company.
B-14
