AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Execution
Copy
AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED REGISTRATION
RIGHTS AGREEMENT (this “Agreement”), dated as of April 5, 2007,
is by and among Charys Holding Company, Inc., a Delaware corporation (the
“Company”), and the undersigned holders.
WHEREAS:
A. Pursuant
to a Registration Rights Agreement, dated as of August 30, 2006 (the
“Existing Registration Rights Agreement”), by and among the
Company and the holders named therein, the Company was obligated to register
the
shares of the Company’s common stock, par value $0.001 per share (the
“Common Stock”), into which certain of the notes and warrants
held by such holders were convertible or exercisable;
B. The
Company has not timely fulfilled its registration obligations under the Existing
Registration Rights Agreement and has requested that the registration deadline
be extended as set forth herein; and
C. The
Existing Registration Rights Agreement may be amended in writing by the Company
and the Required Holders (as defined below), and the undersigned holders
constitute the Required Holders;
NOW,
THEREFORE, in consideration of the
premises and the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Company and each of the undersigned holders hereby agree that the Existing
Registration Rights Agreement is hereby amended and restated in its entirety
to
read as follows:
1. DEFINITIONS.
Capitalized
terms used herein and not
otherwise defined herein shall have the respective meanings set forth in the
Securities Purchase Agreement (as defined below), by and among the Company
and
the holders named therein. As used in this Agreement, the following
terms shall have the following meanings:
a. “Amendment
Agreement” means the Amendment Agreement, dated as of the date hereof,
by and among the Company and the holders named therein.
b. “Business
Day” means any day other than Saturday, Sunday or any other day on
which commercial banks in The City of New York are authorized or required by
law
to remain closed.
c. “Conversion
Shares” means the shares of Common Stock into which the Notes are
convertible.
d. “Effective
Date” means the date that the Registration Statement has been declared
effective by the SEC.
e. “Effectiveness
Deadline” means the date that is 60 days after the Filing Deadline.
f. “Filing
Deadline” means the earlier of (i) August 31, 2007 and (ii) the date
that is 10 Business Days after the date on which all registration statements
required to be filed pursuant to Section 2(a) of the Registration Rights
Agreement, dated February 16, 2007, by and between the Company and XxXxxxx
Securities Co., L.P., are declared effective by the SEC.
g. “Holder”
means a holder of any Securities or any transferee or assignee thereof to whom
a
holder assigns its rights under this Agreement and who agrees to become bound
by
the provisions of this Agreement in accordance with Section 9 and any
transferee or assignee thereof to whom a transferee or assignee assigns its
rights under this Agreement and who agrees to become bound by the provisions
of
this Agreement in accordance with Section 9.
h. “Notes”
means the Amended and Restated Senior Secured Convertible Notes of the Company,
dated as of the date hereof, which, as of the date hereof, are held by the
undersigned Holders.
i. “Person”
means an individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a government
or any department or agency thereof.
j. “Register,”
“registered,” and “registration” refer to a
registration effected by preparing and filing one or more Registration
Statements (as defined below) in compliance with the 1933 Act and pursuant
to
Rule 415 and the declaration or ordering of effectiveness of such
Registration Statement(s) by the SEC.
k. “Registrable
Securities” means (i) the Conversion Shares issued or issuable
upon conversion of the Notes, (ii) the Warrant Shares issued or issuable
upon exercise of the Warrants and (iii) any capital stock of the Company issued
or issuable with respect to the Conversion Shares, the Notes, the Warrant Shares
and/or the Warrants as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise, without regard to
any
limitations on conversions of the Notes or exercises of the
Warrants.
l. “Registration
Statement” means a registration statement or registration statements of
the Company filed under the 1933 Act covering the Registrable
Securities.
m. “Required
Holders” means the holders of at least a majority of the Registrable
Securities.
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n. “Required
Registration Amount” means 175% of the sum of (i) the number of
Conversion Shares issued and issuable pursuant to the Notes as of the Trading
Day immediately preceding the applicable date of determination, and
(ii) the number of Warrant Shares issued and issuable pursuant to the
Warrants as of the Trading Day immediately preceding the applicable date of
determination, all subject to adjustment as provided in Section 2(e) (without
regard to any limitations on conversion of the Notes or exercise of the
Warrants).
o. “Rule 415”
means Rule 415 under the 1933 Act or any successor rule providing for
offering securities on a continuous or delayed basis.
p. “SEC”
means the United States Securities and Exchange Commission.
q. “Securities”
means the Notes, Warrants, Conversion Shares and Warrant Shares.
r. “Securities
Purchase Agreement” means the Securities Purchase Agreement dated
August 30, 2006 by and among the Company and the investors named therein, and
the Securities Purchase Agreement dated November 10, 2006 by and between the
Company and the investor named therein.
s. “Trading
Day” has the meaning given to such term in the Notes.
t. “Warrants”
means the Warrants issued by the Company pursuant to the Securities Purchase
Agreement.
u. “Warrant
Shares” means the shares of Common Stock for which the Warrants are
exercisable.
2. REGISTRATION.
a. Mandatory
Registration. The Company shall prepare, and, as soon as
practicable, but in no event later than the Filing Deadline, file with the
SEC
the Registration Statement on Form SB-2, or any other available form, covering
the resale of all of the Registrable Securities, subject to
the provisions of Section 2(d). The Registration Statement
prepared pursuant hereto shall register for resale at least the number of shares
of Common Stock equal to the Required Registration Amount as of date the
Registration Statement is initially filed with the SEC. The Company
shall use its best efforts to have the Registration Statement declared effective
by the SEC as soon as practicable, but in no event later than the Effectiveness
Deadline. By 9:30 am on the Business Day following the Effective
Date, the Company shall file with the SEC in accordance with Rule 424 under
the 1933 Act the final prospectus to be used in connection with sales pursuant
to such Registration Statement.
b. Allocation
of Registrable Securities. The initial number of Registrable
Securities included in any Registration Statement and any increase in the number
of Registrable Securities included therein shall be allocated pro rata among the
Holders based on the number of Registrable Securities held by each Holder at
the
time the Registration Statement covering such initial number of Registrable
Securities or increase thereof is declared effective by the SEC. In
the event that an Holder sells or otherwise transfers any of such Holder’s
Registrable Securities, each transferee shall be allocated a pro rata portion
of
the then remaining number of Registrable Securities included in such
Registration Statement for such transferor. Any Shares of Common
Stock included in a Registration Statement and which remain allocated to any
Person which ceases to hold any Registrable Securities covered by such
Registration Statement shall be allocated to the remaining Holders, pro rata
based on the number of Registrable Securities then held by such Holders which
are covered by such Registration Statement. The Holders understand
that the Company has obligations with respect to other registration rights
and
that the Company may include in the Registration Statement those securities
set
forth on Schedule 2(b) hereof with respect to which it has an existing
obligation to register such securities under 1933 Act as of the date
hereof.
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c. Legal
Counsel. Subject to Section 5 hereof, the Required Holders
shall have the right to select one legal counsel to review and oversee any
registration pursuant to this Section 2 (“Legal Counsel”),
which shall be Xxxxxx Song LLP or such other counsel as thereafter designated
by
the Required Holders. The Company and Legal Counsel shall reasonably
cooperate with each other in performing the Company’s obligations under this
Agreement.
d. Ineligibility
for Form S-3. In the event that Form S-3 is not available
for the registration of the resale of Registrable Securities hereunder, the
Company shall (i) register the resale of the Registrable Securities on
another appropriate form reasonably acceptable to the Required Holders and
(ii) undertake to register the Registrable Securities on Form S-3 as soon
as such form is available, provided that the Company shall maintain the
effectiveness of the Registration Statement then in effect until such time
as a
Registration Statement on Form S-3 covering the Registrable Securities has
been
declared effective by the SEC.
e. Sufficient
Number of Shares Registered. In the event the number of shares
available under a Registration Statement filed pursuant to Section 2(a) is
insufficient to cover all of the Registrable Securities required to be covered
by such Registration Statement or an Holder’s allocated portion of the
Registrable Securities pursuant to Section 2(b), the Company shall amend
the applicable Registration Statement, or file a new Registration Statement
(on
the shortest form available therefor, if applicable), or both, so as to cover
at
least the Required Registration Amount as of the Trading Day immediately
preceding the date of the filing of such amendment or new Registration
Statement, in each case, as soon as practicable, but in any event not later
than
forty-five (45) days after the necessity therefor arises. The Company
shall use its best efforts to cause such amendment and/or new Registration
Statement to become effective as soon as practicable following the filing
thereof. For purposes of the foregoing provision, the number of
shares available under a Registration Statement shall be deemed “insufficient to
cover all of the Registrable Securities” if at any time the number of shares of
Common Stock available for resale under the Registration Statement is less
than
the product determined by multiplying (i) the Required Registration Amount
as of such time by (ii) 0.90. The calculation set forth in the
foregoing sentence shall be made without regard to any limitations on the
conversion of the Notes or the exercise of the Warrants and such calculation
shall assume that the Notes are then convertible into shares of Common Stock
at
the then prevailing Conversion Rate (as defined in the Notes) and that the
Warrants are then exercisable for shares of Common Stock at the then prevailing
Exercise Price (as defined in the Warrants) and for the number of Warrant Shares
covered thereby.
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f. Effect
of Failure to File and Obtain and Maintain Effectiveness of Registration
Statement. If (i) a Registration Statement covering all of
the Registrable Securities required to be covered thereby and required to be
filed by the Company pursuant to this Agreement is (A) not filed with the
SEC on or before the respective Filing Deadline (a “Filing
Failure”) or (B) not declared effective by the SEC on or before
the respective Effectiveness Deadline (an “Effectiveness
Failure”); provided, however, that for thirty (30)
days following the Effectiveness Deadline there will be no
Effectiveness Failure if the SEC is reviewing the Registration Statement and
the
Company is using its best efforts to have the Registration Statement declared
effective or (ii) on any day after the Effective Date sales of all of the
Registrable Securities required to be included on such Registration Statement
cannot be made (other than during an Allowable Grace Period (as defined in
Section 3(r)) pursuant to such Registration Statement (including, without
limitation, because of a failure to keep such Registration Statement effective,
to disclose such information as is necessary for sales to be made pursuant
to
such Registration Statement or to register a sufficient number of Shares of
Common Stock) (a “Maintenance Failure”) then, as partial relief
for the damages to any holder by reason of any Filing Failure, Effectiveness
Failure or Maintenance Failure (which remedy shall not be exclusive of any
other
remedies available at law or in equity), the Company shall pay to each holder
of
Registrable Securities relating to such Registration Statement an amount in
cash
equal to two percent (2%) of the aggregate principal amount of such Holder's
Notes relating to the Registrable Securities included in such Registration
Statement on each of the following dates: (i) the day of a Filing Failure and
on
every thirtieth (30th) day thereafter
(pro rated for periods totaling less than thirty (30) days) until such Filing
Failure is cured; (ii) the day of an Effectiveness Failure and on every
thirtieth (30th) day thereafter
(pro rated for periods totaling less than thirty (30) days) until such
Effectiveness Failure is cured; provided, however, if an
Effectiveness Failure occurs and there has been an SEC review of the
Registration Statement, Registration Delay Payments will begin to accrue on
the
30th day following the Effectiveness Deadline; and (iii) the initial day of
a
Maintenance Failure and on every thirtieth (30th) day thereafter
(pro rated for periods totaling less than thirty (30) days) until such
Maintenance Failure is cured. The payments to which a holder shall be
entitled pursuant to this Section 2(f) are referred to herein as
"Registration Delay Payments". Registration Delay
Payments shall be paid on the day of the Filing Failure, Effectiveness Failure
and the initial day of a Maintenance Failure, as applicable, and thereafter
on
the earlier of (I) the thirtieth (30th) day after
the
event or failure giving rise to the Registration Delay Payments has occurred
and
(II) the third Business Day after the event or failure giving rise to the
Registration Delay Payments is cured. By way of example, if a
Registration Statement covering the Registrable Securities is filed on the
6th day
following the Filing Deadline, the Company shall pay to the Holders the
Registration Delay Payment on the date of the Filing Failure and shall, on
or
prior to the third Business Day following such 6th day, pay
to the
Holders a pro rata amount of the Registration Delay Payment for such subsequent
period (determined by multiplying such Registration Delay Payment by the product
obtained by dividing the number of days (6) during which such Filing Failure
occurred during such subsequent period by 30)). In the event the
Company fails to make Registration Delay Payments in a timely manner, such
Registration Delay Payments shall bear interest at the rate of one and one-half
percent (1.5%) per month (prorated for partial months) until paid in
full. Notwithstanding anything herein to the contrary, in no event
shall the Registration Delay Payments exceed ten percent (10%) of the aggregate
principal amount of the Notes held by all Holders on the date hereof (the
"Registration Delay Payments Cap"). Any amount in
excess of the Registration Delay Payments Cap (the "Excess Registration
Delay Payments") shall cause the Conversion Price of the Holder's Notes
to be lowered by an amount equal to the quotient of the amount of such Holders
Excess Registration Delay Payments divided by the then outstanding amount of
such Holder's Notes. Notwithstanding anything to the contrary contained herein,
(y) in no event shall the Company be liable for any damages in connection with
the Warrant or Warrant Shares and (z) no Registration Delay Payments shall
be
payable with respect to any Registrable Securities excluded from a Registration
Statement by election of a Holder.
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3. RELATED
OBLIGATIONS.
At
such time as the Company is
obligated to file a Registration Statement with the SEC pursuant to
Section 2(a), 2(d) or 2(e), the Company will use its best efforts to effect
the registration of the Registrable Securities in accordance with the intended
method of disposition thereof and, pursuant thereto, the Company shall have
the
following obligations:
a. The
Company shall promptly, but in no event later than the Filing Deadline, prepare
and file with the SEC a Registration Statement with respect to the Registrable
Securities and use its best efforts to cause such Registration Statement
relating to the Registrable Securities to become effective as soon as
practicable after such filing (but in no event later than the Effectiveness
Deadline). The Company shall keep each Registration Statement
effective pursuant to Rule 415 at all times until the earlier of
(i) the date as of which the Holders may sell all of the Registrable
Securities covered by such Registration Statement without restriction pursuant
to Rule 144(k) (or any successor thereto) promulgated under the 1933 Act or
(ii) the date on which the Holders shall have sold all of the Registrable
Securities covered by such Registration Statement (the “Registration
Period”). The Company shall ensure that each Registration
Statement (including any amendments or supplements thereto and prospectuses
contained therein) shall not contain any untrue statement of a material fact
or
omit to state a material fact required to be stated therein, or necessary to
make the statements therein (in the case of prospectuses, in the light of the
circumstances in which they were made) not misleading. The term “best
efforts” shall mean, among other things, that the Company shall submit to the
SEC, within two (2) Business Days after the later of the date that (i) the
Company learns that no review of a particular Registration Statement will be
made by the staff of the SEC or that the staff has no further comments on a
particular Registration Statement, as the case may be, and (ii) the
approval of Legal Counsel pursuant to Section 3(c) (which approval is
immediately sought), a request for acceleration of effectiveness of such
Registration Statement to a time and date not later than 48 hours after the
submission of such request.
b. The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and
the
prospectus used in connection with such Registration Statement, which prospectus
is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may
be necessary to keep such Registration Statement effective at all times during
the Registration Period, and, during such period, comply with the provisions
of
the 1933 Act with respect to the disposition of all Registrable Securities
of
the Company covered by such Registration Statement until such time as all of
such Registrable Securities shall have been disposed of in accordance with
the
intended methods of disposition by the seller
or sellers
thereof as set forth in such Registration Statement. In the case of
amendments and supplements to a Registration Statement which are required to
be
filed pursuant to this Agreement (including pursuant to this Section 3(b))
by reason of the Company filing a report on Form 10-Q or Form 10-QSB, Form
10-K
or Form 10-KSB or any analogous report under the Securities Exchange Act of
1934, as amended (the “1934 Act”), the Company shall have
incorporated such report by reference into such Registration Statement, if
applicable, or shall file such amendments or supplements with the SEC on the
same day on which the 1934 Act report is filed which created the requirement
for
the Company to amend or supplement such Registration
Statement.
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c. The
Company shall (A) permit Legal Counsel to review and comment upon
(i) a Registration Statement at least five (5) Business Days prior to
its filing with the SEC and (ii) all amendments and supplements to all
Registration Statements (except for Annual Reports on Form 10-K or Form 10-KSB,
and Reports on Form 10-Q or Form 10-QSB and any similar or successor reports)
within a reasonable number of days prior to their filing with the SEC, and
(B) not file any Registration Statement or amendment or supplement thereto
in a form to which Legal Counsel reasonably objects. The Company
shall not submit a request for acceleration of the effectiveness of a
Registration Statement or any amendment or supplement thereto without the prior
approval of Legal Counsel, which consent shall not be unreasonably
withheld. The Company shall furnish to Legal Counsel, without charge,
(i) copies of any correspondence from the SEC or the staff of the SEC to
the Company or its representatives relating to any Registration Statement,
(ii) promptly after the same is prepared and filed with the SEC, one copy
of any Registration Statement and any amendment(s) thereto, including financial
statements and schedules, all documents incorporated therein by reference,
if
requested by an Holder, and all exhibits and (iii) upon the effectiveness
of any Registration Statement, one copy of the prospectus included in such
Registration Statement and all amendments and supplements
thereto. The Company shall reasonably cooperate with Legal Counsel in
performing the Company’s obligations pursuant to this
Section 3.
d. The
Company shall furnish to each Holder whose Registrable Securities are included
in any Registration Statement, without charge, (i) if the Company shall not
have filed a final prospectus in accordance with Rule 424 per
Section 2(a), upon the effectiveness of any Registration Statement, ten
(10) copies of the prospectus included in such Registration Statement and all
amendments and supplements thereto (or such other number of copies as such
Holder may reasonably request) and (ii) such other documents, including
copies of any preliminary or final prospectus, as such Holder may reasonably
request from time to time in order to facilitate the disposition of the
Registrable Securities owned by such Holder.
e. The
Company shall use its best efforts to (i) register and qualify, unless an
exemption from registration and qualification applies, the resale by Holders
of
the Registrable Securities covered by a Registration Statement under such other
securities or “blue sky” laws of all applicable jurisdictions in the United
States, (ii) prepare and file in those jurisdictions, such amendments
(including post-effective amendments) and supplements to such registrations
and
qualifications as may be necessary to maintain the effectiveness thereof during
the Registration Period, (iii) take such other actions as may be necessary
to maintain such registrations and qualifications in effect at all times during
the Registration Period, and (iv) take all other actions reasonably necessary
or
advisable to qualify the Registrable Securities for sale in
such jurisdictions; provided, however, that the Company shall not be required
in
connection therewith or as a condition thereto to (x) qualify to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(e), (y) subject itself to general taxation in
any such jurisdiction, or (z) file a general consent to service of process
in any such jurisdiction. The Company shall promptly notify Legal
Counsel and each Holder who holds Registrable Securities of the receipt by
the
Company of any notification with respect to the suspension of the registration
or qualification of any of the Registrable Securities for sale under the
securities or “blue sky” laws of any jurisdiction in the United States or its
receipt of actual notice of the initiation or threatening of any proceeding
for
such purpose.
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f. The
Company shall notify Legal Counsel and each Holder in writing of the happening
of any event, as promptly as practicable after becoming aware of such event,
as
a result of which the prospectus included in a Registration Statement, as then
in effect, includes an untrue statement of a material fact or omission to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (provided that in no event shall such notice contain any
material, nonpublic information), and, subject to Section 3(r), promptly
prepare a supplement or amendment to such Registration Statement to correct
such
untrue statement or omission, and deliver ten (10) copies of such supplement
or
amendment to Legal Counsel and each Holder (or such other number of copies
as
Legal Counsel or such Holder may reasonably request). The Company
shall also promptly notify Legal Counsel and each Holder in writing
(i) when a prospectus or any prospectus supplement or post-effective
amendment has been filed, and when a Registration Statement or any
post-effective amendment has become effective (notification of such
effectiveness shall be delivered to Legal Counsel and each Holder by facsimile
or e-mail on the same day of such effectiveness and by overnight mail),
(ii) of any request by the SEC for amendments or supplements to a
Registration Statement or related prospectus or related information, and
(iii) of the Company’s reasonable determination that a post-effective
amendment to a Registration Statement would be appropriate.
g. The
Company shall use its best efforts to prevent the issuance of any stop order
or
other suspension of effectiveness of a Registration Statement, or the suspension
of the qualification of any of the Registrable Securities for sale in any
jurisdiction and, if such an order or suspension is issued, to obtain the
withdrawal of such order or suspension at the earliest possible moment and
to
notify Legal Counsel and each Holder who holds Registrable Securities being
sold
of the issuance of such order and the resolution thereof or its receipt of
actual notice of the initiation or threat of any proceeding for such
purpose.
h. At
the reasonable request of any Holder, the Company shall furnish to such Holder,
on the date of the effectiveness of the Registration Statement and thereafter
from time to time on such dates as an Holder may reasonably request (i) a
letter, dated such date, from the Company’s independent certified public
accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the Holders, and (ii) an opinion, dated as of such date, of
counsel representing the Company for purposes of such Registration Statement,
in
form, scope and substance as is customarily given in an underwritten public
offering, addressed to the Holders.
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j. The
Company shall hold in confidence and not make any disclosure of information
concerning an Holder provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws,
(ii) the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release
of such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to
the public other than by disclosure in violation of this Agreement or any other
agreement. The Company agrees that it shall, upon learning that
disclosure of such information concerning an Holder is sought in or by a court
or governmental body of competent jurisdiction or through other means, give
prompt written notice to such Holder and allow such Holder, at the Holder’s
expense, to undertake appropriate action to prevent disclosure of, or to obtain
a protective order for, such information.
k. The
Company shall use its best efforts either to (i) cause all of the
Registrable Securities covered by a Registration Statement to be listed on
each
securities exchange on which securities of the same class or series issued
by
the Company are then listed (which shall include the OTC Bulletin Board), if
any, if the listing of such Registrable Securities is then permitted under
the
rules of such exchange, or (ii) secure designation and quotation of all of
the Registrable Securities covered by a Registration Statement on the Nasdaq
National Market, or (iii) if, despite the Company’s commercially reasonable
best efforts to satisfy the preceding clauses (i) or (ii) the Company
is unsuccessful in satisfying the preceding clauses (i) or (ii), to secure
the inclusion for quotation on The Nasdaq Capital Market for
such Registrable Securities and, without limiting the generality of the
foregoing, to use its commercially reasonable best efforts to arrange for at
least two market makers to register with the National Association of Securities
Dealers, Inc. (“NASD”) as such with respect to such Registrable
Securities. The Company shall pay all fees and expenses in connection
with satisfying its obligation under this
Section 3(k).
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l. The
Company shall cooperate with the Holders who hold Registrable Securities being
offered and, to the extent applicable, facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legend) representing
the
Registrable Securities to be offered pursuant to a Registration Statement and
enable such certificates to be in such denominations or amounts, as the case
may
be, as the Holders may reasonably request and registered in such names as the
Holders may request.
m. If
requested by an Holder, the Company shall within ten (10) days of receipt of
notice from such Holder (i) incorporate in a prospectus supplement or
post-effective amendment such information as an Holder reasonably requests
to be
included therein relating to the sale and distribution of Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being offered or sold, the purchase price
being
paid therefor and any other terms of the offering of the Registrable Securities
to be sold in such offering; (ii) make all required filings of such prospectus
supplement or post-effective amendment after being notified of the matters
to be
incorporated in such prospectus supplement or post-effective amendment; and
(iii) supplement or make amendments to any Registration Statement if
reasonably requested by an Holder holding any Registrable
Securities.
n. The
Company shall reasonably cooperate with the Holders as may be necessary to
consummate the disposition of such Registrable Securities.
o. The
Company shall make generally available to its security holders as soon as
practical, but not later than ninety (90) days after the close of the period
covered thereby, an earnings statement (in form complying with, and in the
manner provided by, the provisions of Rule 158 under the 0000 Xxx) covering
a twelve-month period beginning not later than the first day of the Company’s
fiscal quarter next following the effective date of the Registration
Statement.
p. The
Company shall otherwise use its best efforts to comply with all applicable
rules
and regulations of the SEC in connection with any registration
hereunder.
q. Within
two (2) Business Days after a Registration Statement which covers Registrable
Securities is ordered effective by the SEC, the Company shall deliver, and
shall
cause legal counsel for the Company to deliver, to the transfer agent for such
Registrable Securities (with copies to the Holders whose Registrable Securities
are included in such Registration Statement) confirmation that such Registration
Statement has been declared effective by the SEC in the form attached hereto
as Exhibit A.
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4. OBLIGATIONS
OF THE HOLDERS.
a. At
least ten (10) Business Days prior to the first anticipated filing date of
a
Registration Statement, the Company shall notify each Holder in writing of
the
information the Company requires from each such Holder if such Holder elects
to
have any of such Holder’s Registrable Securities included in such Registration
Statement. It shall be a condition precedent to the obligations of
the Company to complete the registration pursuant to this Agreement with respect
to the Registrable Securities of a particular Holder that such Holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it, as shall be reasonably required to effect and maintain
the effectiveness of the registration of such Registrable Securities and shall
execute such documents in connection with such registration as the Company
may
reasonably request.
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b. Each
Holder, by such Holder’s acceptance of the Registrable Securities, agrees to
cooperate with the Company as reasonably requested by the Company in connection
with the preparation and filing of any Registration Statement hereunder, unless
such Holder has notified the Company in writing of such Holder’s election to
exclude all of such Holder’s Registrable Securities from such Registration
Statement.
d. Each
Holder covenants and agrees that it will comply with any applicable prospectus
delivery requirements of the 1933 Act as applicable to or an exemption therefrom
it in connection with sales of Registrable Securities pursuant to the
Registration Statement.
5. EXPENSES
OF REGISTRATION.
All
reasonable expenses, other than underwriting discounts and commissions, incurred
in connection with registrations, filings or qualifications pursuant to
Sections 2 and 3, including, without limitation, all registration, listing
and qualifications fees, printers and accounting fees, and fees and
disbursements of counsel for the Company related to registrations shall be
paid
by the Company. The Company shall also reimburse the Holders for the
fees and disbursements of Legal Counsel in connection with registration, filing
or qualification pursuant to Sections 2 and 3 of this Agreement which
amount shall be limited to $15,000.
6. INDEMNIFICATION.
In
the event any Registrable Securities
are included in a Registration Statement under this Agreement:
a. To
the fullest extent permitted by law, the Company will, and hereby does,
indemnify, hold harmless and defend each Holder, the directors, officers,
members, managers, partners, employees, stockholders, agents, representatives
of, and each Person, if any, who controls any Holder within the meaning of
the
1933 Act or the 1934 Act (each, an “Indemnified Person”),
against any losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs, reasonable attorneys’ fees, amounts paid in settlement or
expenses, joint or several, (collectively, “Claims”) incurred
in investigating, preparing or defending any action, claim, suit, inquiry,
proceeding, investigation or appeal taken from the foregoing by or before any
court or governmental, administrative or other regulatory agency, body or the
SEC, whether pending or threatened, whether or not an indemnified party is
or
may be a party thereto (“Indemnified Damages”), to which any of
them may become subject insofar as such Claims (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon: (i) any untrue statement or alleged untrue statement of a material
fact in a Registration Statement or any post-effective amendment thereto or
in
any filing made in connection with the qualification of the offering under
the
securities or other “blue sky” laws of any jurisdiction in which Registrable Securities are offered
(“Blue Sky
Filing”), or the omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (ii) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus if used prior to the
effective date of such Registration Statement, or contained in the final
prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements therein were
made, not misleading, (iii) any violation or alleged violation by the
Company of the 1933 Act, the 1934 Act, any other law, including, without
limitation, any state securities law, or any rule or regulation thereunder
relating to the offer or sale of the Registrable Securities pursuant to a
Registration Statement or (iv) any violation of this Agreement (the matters
in the foregoing clauses (i) through (iv) being, collectively,
“Violations”). Subject to Section 6(c), the
Company shall reimburse the Indemnified Persons, promptly as such expenses
are
incurred and are due and payable, for any legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any
such
Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (i) shall
not apply to a Claim by an Indemnified Person arising out of or based upon
a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company by such Indemnified Person for such
Indemnified Person expressly for use in connection with the preparation of
the
Registration Statement or any such amendment thereof or supplement thereto,
if
such prospectus was timely made available by the Company pursuant to Section
3(d) and (ii) shall not apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld or delayed. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Person and shall survive the transfer
of
the Registrable Securities by the Holders pursuant to
Section 9.
12
b. In
connection with any Registration Statement in which an Holder is participating,
each such Holder agrees to severally and not jointly indemnify, hold harmless
and defend, to the same extent and in the same manner as is set forth in
Section 6(a), the Company, each of its directors, each of its officers who
signs the Registration Statement and each Person, if any, who controls the
Company within the meaning of the 1933 Act or the 1934 Act (each, an
“Indemnified Party”), against any Claim or Indemnified Damages
to which any of them may become subject, under the 1933 Act, the 1934 Act or
otherwise, insofar as such Claim or Indemnified Damages arise out of or are
based upon any Violation, in each case to the extent, and only to the extent,
that such Violation occurs in reliance upon and in conformity with written
information furnished to the Company by such Holder expressly for use in
connection with such Registration Statement; and, subject to Section 6(c),
such Holder will reimburse any legal or other expenses reasonably incurred
by an
Indemnified Party in connection with investigating or defending any such Claim;
provided, however, that the indemnity agreement contained in this Section 6(b)
and the agreement with respect to contribution contained in Section 7 shall
not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of such Holder, which consent shall
not be unreasonably withheld or delayed; provided, further, however, that the
Holder shall be liable under this Section 6(b) or Section 7 for only that amount
of a Claim or Indemnified Damages as does not exceed the net proceeds to such
Holder as a result of the sale of Registrable Securities pursuant to such
Registration Statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Indemnified
Party and shall survive the transfer of the Registrable Securities by the
Holders pursuant to Section 9. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(b) with respect to any preliminary prospectus shall not inure to
the
benefit of any Indemnified Party if the untrue statement or omission of material
fact contained in the preliminary prospectus was corrected on a timely basis
in
the prospectus, as then amended or supplemented.
13
c. Promptly
after receipt by an Indemnified Person or Indemnified Party under this
Section 6 of notice of the commencement of any action or proceeding
(including any governmental action or proceeding) involving a Claim, such
Indemnified Person or Indemnified Party shall, if a Claim in respect thereof
is
to be made against any indemnifying party under this Section 6, deliver to
the indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person
or
the Indemnified Party, as the case may be; provided, however, that an
Indemnified Person or Indemnified Party shall have the right to retain its
own
counsel with the fees and expenses of not more than one counsel for such
Indemnified Person or Indemnified Party to be paid by the indemnifying party,
if, in the reasonable opinion of counsel retained by the indemnifying party,
the
representation by such counsel of the Indemnified Person or Indemnified Party
and the indemnifying party would be inappropriate due to actual or potential
differing interests between such Indemnified Person or Indemnified Party and
any
other party represented by such counsel in such proceeding. In the
case of an Indemnified Person, legal counsel referred to in the immediately
preceding sentence shall be selected by the Holders holding at least a majority
in interest of the Registrable Securities included in the Registration Statement
to which the Claim relates. The Indemnified Party or Indemnified
Person shall cooperate reasonably with the indemnifying party in connection
with
any negotiation or defense of any such action or Claim by the indemnifying
party
and shall furnish to the indemnifying party all information reasonably available
to the Indemnified Party or Indemnified Person which relates to such action
or
Claim. The indemnifying party shall keep the Indemnified Party or
Indemnified Person fully apprised at all times as to the status of the defense
or any settlement negotiations with respect thereto. No indemnifying
party shall be liable for any settlement of any action, claim or proceeding
affected without its prior written consent, provided, however, that the
indemnifying party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the prior written
consent of the Indemnified Party or Indemnified Person, consent to entry of
any
judgment or enter into any settlement or other compromise which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to
such
Indemnified Party or Indemnified Person of a release from all liability in
respect to such Claim or litigation. Following indemnification as
provided for hereunder, the indemnifying party shall be subrogated to all rights
of the Indemnified Party or Indemnified Person with respect to all third
parties, firms or corporations relating to the matter for which indemnification
has been made. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is materially prejudiced in its ability
to
defend such action.
14
e. The
indemnity agreements contained herein shall be in addition to (i) any cause
of action or similar right of the Indemnified Party or Indemnified Person
against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to the law.
7. CONTRIBUTION.
To
the extent any indemnification by an
indemnifying party is prohibited or limited by law, the indemnifying party
agrees to make the maximum contribution with respect to any amounts for which
it
would otherwise be liable under Section 6 to the fullest extent permitted
by law; provided, however, that: (i) no Person involved in the sale of
Registrable Securities which Person is guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) in connection with such
sale shall be entitled to contribution from any Person involved in such sale
of
Registrable Securities who was not guilty of fraudulent misrepresentation;
and
(ii) contribution by any seller of Registrable Securities shall be limited
in amount to the net amount of proceeds received by such seller from the sale
of
such Registrable Securities pursuant to such Registration
Statement.
8. REPORTS
UNDER THE 1934 ACT.
With
a view to making available to the
Holders the benefits of Rule 144 promulgated under the 1933 Act or any
other similar rule or regulation of the SEC that may at any time permit the
Holders to sell securities of the Company to the public without registration
(“Rule 144”), the Company agrees to:
a. make
and keep public information available, as those terms are understood and defined
in Rule 144;
b. file
with the SEC in a timely manner all reports and other documents required of
the
Company under the 1933 Act and the 1934 Act so long as the Company remains
subject to such requirements (it being understood that nothing herein shall
limit the Company’s obligations under Section 4(c) of the Securities Purchase
Agreement) and the filing of such reports and other documents is required for
the applicable provisions of Rule 144; and
15
c. furnish
to each Holder so long as such Holder owns Registrable Securities, promptly
upon
request, (i) a written statement by the Company, if true, that it has
complied with the reporting requirements of Rule 144, the 1933 Act and the
1934 Act, (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and
(iii) such other information as may be reasonably requested to permit the
Holders to sell such securities pursuant to Rule 144 without
registration.
9. ASSIGNMENT
OF REGISTRATION RIGHTS.
The
rights under this Agreement shall
be automatically assignable by an Holder to any transferee of all or any portion
of such Holder’s Registrable Securities if: (i) such Holder agrees in
writing with the transferee or assignee to assign such rights, and a copy of
such agreement is furnished to the Company within a reasonable time after such
assignment; (ii) the Company is, within a reasonable time after such
transfer or assignment, furnished with written notice of (a) the name and
address of such transferee or assignee, and (b) the securities with respect
to which such registration rights are being transferred or assigned;
(iii) immediately following such transfer or assignment the further
disposition of such securities by the transferee or assignee is restricted
under
the 1933 Act and applicable state securities laws; (iv) at or before the
time the Company receives the written notice contemplated by clause (ii) of
this sentence the transferee or assignee agrees in writing with the Company
to
be bound by all of the provisions contained herein; and (v) such transfer
shall have been made in accordance with the applicable requirements of the
Securities Purchase Agreement.
10. AMENDMENT
OF REGISTRATION RIGHTS.
Provisions
of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Required Holders. Any
amendment or waiver effected in accordance with this Section 10 shall be
binding upon each Holder and the Company. No such amendment shall be
effective to the extent that it applies to less than all of the holders of
the
Registrable Securities. No consideration shall be offered or paid to
any Person to amend or consent to a waiver or modification of any provision
of
any of this Agreement unless the same consideration also is offered to all
of
the parties to this Agreement.
11. MISCELLANEOUS.
a. A
Person is deemed to be a holder of Registrable Securities whenever such Person
owns or is deemed to own of record such Registrable Securities. If
the Company receives conflicting instructions, notices or elections from two
or
more Persons with respect to the same Registrable Securities, the Company shall
act upon the basis of instructions, notice or election received from such record
owner of such Registrable Securities.
16
b. Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally;
(ii) upon receipt, when sent by facsimile (provided confirmation of
transmission is mechanically or electronically generated and kept on file by
the
sending party); or (iii) one Business Day after deposit with a nationally
recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses and facsimile numbers for
such communications shall be:
If
to the
Company:
Charys
Holding Company, Inc.
0000
Xxxxxxxxx Xxxxxx Xxxx, Xxxxx X000
Xxxxxxx,
XX 00000
|
|
Attention:
|
Xxxxx
X. Xxx, Xx.
|
|
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Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
If
to
Legal Counsel for the Company:
Xxxxxx Xxxxxxx
& Xxxxxx, LLP
1600
Atlanta Financial Center
0000
Xxxxxxxxx Xxxx
Xxxxxxx,
Xxxxxxx 00000
|
|
Attention:
|
Xxxxx X. Xxxxxxxxxxx,
Esq.
|
|
|
Telephone:
|
000-000-0000
|
|
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Facsimile:
|
000-000-0000
|
and
Glast,
Xxxxxxxx & Xxxxxx, P.C.
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
|
|
Attention:
|
Xxxxxx
X. Xxxxxxxx, Esq.
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
If
to a
Holder, to its address and facsimile number set forth in the Securities Purchase
Agreement or the Amendment Agreement, as applicable, with copies to such
Holder’s representatives as set forth therein, or to such other address and/or
facsimile number and/or to the attention of such other Person as the recipient
party has specified by written notice given to each other party five
(5) days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated
by the sender’s facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided
by a courier or overnight courier service shall be rebuttable evidence of
personal service, receipt by facsimile or receipt from a nationally recognized
overnight delivery service in accordance with clause (i), (ii) or (iii)
above, respectively.
17
c. Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as
a
waiver thereof.
d. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision
or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State
of
New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state
and federal courts sitting
in The City of New York, Borough of Manhattan, for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in
any
such suit, action or proceeding by mailing a copy thereof to such party at
the
address for such notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law. If any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or
the
validity or enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT
OR
ANY TRANSACTION CONTEMPLATED HEREBY.
e. This
Agreement, the other Transaction Documents (as defined in the Amendment
Agreement) and the instruments referenced herein and therein constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties
or undertakings, other than those set forth or referred to herein and
therein. This Agreement, the other Transaction Documents and the
instruments referenced herein and therein supersede all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof and thereof.
f. Subject
to the requirements of Section 9, this Agreement shall inure to the benefit
of and be binding upon the permitted successors and assigns of each of the
parties hereto.
g. The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
18
h. This
Agreement may be executed in identical counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
agreement. This Agreement, once executed by a party, may be delivered
to the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
i. Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as any other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
j. All
consents and other determinations required to be made by the Holders pursuant
to
this Agreement shall be made, unless otherwise specified in this Agreement,
by
the Required Holders.
k. The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent and no rules of strict construction
will
be applied against any party.
l. This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
m. The
obligations of each Holder hereunder are several and not joint with the
obligations of any other Holder, and no provision of this Agreement is intended
to confer any obligations on any Holder vis-à-vis any other
Holder. Nothing contained herein, and no action taken by any Holder
pursuant hereto, 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 or as a group
with
respect to such obligations or the transactions contemplated
herein.
n. In
the event of any conflict between the terms of this Agreement, the Amendment
Agreement, or any of the other Transaction Documents or exhibits referred to
herein or therein, the terms of the Amendment Agreement shall
control.
[SIGNATURES
ON FOLLOWING PAGE]
19
IN
WITNESS WHEREOF, the undersigned
holders and the Company have caused their respective signature page to this
Amended and Restated Registration Rights Agreement to be duly executed as of
the
date first written above.
|
CHARYS
HOLDING COMPANY, INC.
|
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|
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|
By
|
|
||
|
|
Xxxxx X. Xxx,
Xx.
|
||
|
|
Chief
Executive Officer
|
||
|
HOLDER:
|
|||
|
|
|||
|
IMPERIUM
MASTER FUND, LTD.
|
|||
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|
|||
|
|
|||
|
By:
|
|
||
|
|
Xxxxxxx Xxxxxxx
|
||
|
|
General
Counsel
|
||
IN
WITNESS WHEREOF, the undersigned
holders and the Company have caused their respective signature page to this
Amended and Restated Registration Rights Agreement to be duly executed as of
the
date first written above.
|
CHARYS
HOLDING COMPANY, INC.
|
|||
|
|
|||
|
By
|
|||
|
|
Xxxxx X. Xxx,
Xx.
|
||
|
|
Chief
Executive Officer
|
||
|
HOLDER:
|
|||
|
|
|||
|
XXX
FAMILY TRUST
|
|||
|
|
|||
|
|
|||
|
By:
|
|||
|
|
Name:
|
||
|
|
Title:
|
||
IN
WITNESS WHEREOF, the undersigned
holders and the Company have caused their respective signature page to this
Amended and Restated Registration Rights Agreement to be duly executed as of
the
date first written above.
|
CHARYS
HOLDING COMPANY, INC.
|
|||
|
|
|||
|
By
|
|||
|
|
Xxxxx X. Xxx,
Xx.
|
||
|
|
Chief
Executive Officer
|
||
|
HOLDER:
|
|||
|
|
|||
|
XXXX XXXXXXXXXX
|
|||
EXHIBIT
A
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
[Registrar
& Transfer Co.
00
Xxxxxxxx Xxxxx
Xxxxxxxx,
XX 00000]
|
|
Re:
|
Charys
Holding Co., Inc.
|
Ladies
and Gentlemen:
[We
are][I am] counsel to Charys
Holding Company, Inc., a Delaware corporation (the “Company”), and have
represented the Company in connection with that certain Amended and Restated
Registration Rights Agreement, dated as of April 5, 2007, by and among the
Company and the Holders (as defined therein) (the “ Registration Rights
Agreement”), pursuant to which the Company agreed, among other things, to
register the Registrable Securities (as defined in the Registration Rights
Agreement), including the shares of Common Stock issuable upon conversion of
the
Notes and the shares of Common Stock issuable upon exercise of the Warrants,
under the Securities Act of 1933, as amended (the “1933 Act”). In
connection with the Company’s obligations under the Registration Rights
Agreement, on ___, 200_, the Company filed a Registration Statement on Form
SB-2
(File No. 333-___) (the “Registration Statement ”) with the
Securities and Exchange Commission (the “SEC”) relating to the Registrable
Securities which names each of the Holders as a selling stockholder
thereunder.
In
connection with the foregoing,
[we][I] advise you that a member of the SEC’s staff has advised [us][me] by
telephone that the SEC has entered an order declaring the Registration Statement
effective under the 1933 Act at [ ENTER TIME OF EFFECTIVENESS
] on [ ENTER DATE OF EFFECTIVENESS ] and
[we][I] have no knowledge, after telephonic inquiry of a member of the SEC’s
staff, that any stop order suspending its effectiveness has been issued or
that
any proceedings for that purpose are pending before, or threatened by, the
SEC
and the Registrable Securities are available for resale under the 1933 Act
pursuant to the Registration Statement.
This
letter shall serve as our standing
opinion to you that the shares of Common Stock are freely transferable by the
Holders pursuant to the Registration Statement.
Very
truly yours,
[ISSUER’S
COUNSEL]
|
CC:
|
[LIST
NAMES OF HOLDERS]
|
