REGISTRATION RIGHTS AGREEMENT
Exhibit
4.2
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of December 17, 2007 among United Benefits &
Pension Services, Inc., a Delaware corporation (“UBPS”),
and
the several purchasers signatory hereto (each such purchaser is a “Purchaser”
and collectively, the “Purchasers”).
This
Agreement is made pursuant to the Subscription Agreement, dated as of the date
hereof between UBPS and the Purchaser (the “Subscription
Agreement”).
UBPS
and
each Purchaser hereby agrees as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in
the
Amended and Restated Private Placement Memorandum of UBPS, dated as of November
5, 2007, as amended and supplemented on December 12, 2007 (as amended and
supplemented, the “Memorandum”),
shall
have the meanings given such terms in the Memorandum. As used in this Agreement,
the following terms shall have the following meanings:
“Advice”
shall
have the meaning set forth in Section 6(d).
“Effectiveness
Date”
means,
with respect to the initial Registration Statement required to be filed
hereunder, July 13, 2008 and, with respect to any additional Registration
Statements which may be required pursuant to Section 3(c), the 120th calendar
day following the date on which UBPS first knows, or reasonably should have
known, that such additional Registration Statement is required hereunder;
provided,
however,
that in
the event UBPS is notified by the SEC that one of the above Registration
Statements will not be reviewed or is no longer subject to further review and
comments, the Effectiveness Date as to such Registration Statement shall be
the
fifth Trading Day following the date on which UBPS is so notified if such date
precedes the dates required above.
“Effectiveness
Period”
shall
have the meaning set forth in Section 2(a).
“Event”
shall
have the meaning set forth in Section 2(b).
“Event
Date”
shall
have the meaning set forth in Section 2(b).
“Filing
Date”
means,
with respect to the initial Registration Statement required hereunder, March
15,
2008 and, with respect to any additional Registration Statements which may
be
required pursuant to Section 3(c), the 45th calendar day following the earlier
of: (i) the date on which UBPS first knows, or reasonably should have known
that
such additional Registration Statement is required hereunder and (ii) the date
any such additional Registration Statement is permitted to be filed with the
SEC.
“Holder”
or
“Holders”
means
the holder or holders, as the case may be, from time to time of Registrable
Securities.
“Selling
Shareholder Questionnaire”
shall
have the meaning set forth in Section 3(a).
“Indemnified
Party”
shall
have the meaning set forth in Section 5(c).
“Indemnifying,
Party”
shall
have the meaning set forth in Section 5(c).
“Losses”
shall
have the meaning set forth in Section 5(a).
“Plan
of Distribution”
shall
have the meaning set forth in Section 2(a).
“Prospectus”
means
the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Registration Statement,
and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Registrable
Securities”
means,
as of the date in question, (i) all of the shares of UBPS Common Stock included
in the Units, (ii) all UBPS Warrant Shares, (iii) any additional shares issuable
in connection with any anti-dilution provisions associated with the UBPS
Warrants (in each case, without giving effect to any limitations on exercise
set
forth in the UBPS Warrant) and (iv) any securities issued or issuable upon
any
stock split, dividend or other distribution, recapitalization or similar event
with respect to the foregoing.
“Registration
Statement”
means
the registration statements required to be filed hereunder and any additional
registration statements contemplated by Section 3(c), including (in each case)
the Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
“Rule
415”
means
Rule 415 promulgated by the SEC 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 SEC having substantially the same purpose and effect as such
Rule.
“Rule
424”
means
Rule 424 promulgated by the SEC 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 SEC having substantially the same purpose and effect as such
Rule.
“Trading
Day”
shall
mean any day other than a Saturday, Sunday or a day on which banks in New York
City or the New York Stock Exchange are authorized or obligated by applicable
law or executive order to close or are otherwise generally closed.
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2. Shelf
Registration.
(a) On
or
prior to each Filing Date, UBPS shall prepare and file with the SEC a “Shelf’
Registration Statement covering the resale of the Registrable Securities on
such
Filing Date for an offering to be made on a continuous basis pursuant to Rule
415. The Registration Statement shall be on Form S-1 (or such other form as
may
be appropriate in accordance herewith) and shall contain (unless otherwise
directed by at least an 85% majority in interest of the Holders) substantially
the “Plan of Distribution” attached hereto as Annex A. Subject to the terms of
this Agreement, UBPS shall use its best efforts to (i) cause a Registration
Statement to be declared effective under the Securities Act as promptly as
possible after the filing thereof, but in any event prior to the applicable
Effectiveness Date, and (ii) to keep such Registration Statement continuously
effective under the Securities Act until all Registrable Securities covered
by
such Registration Statement have been sold, or may be sold without volume
restrictions pursuant to Rule 144(k), as determined by the counsel to UBPS
pursuant to a written opinion letter to such effect, addressed and acceptable
to
UBPS’s transfer agent and the affected Holders (the “Effectiveness
Period”).
UBPS
shall telephonically confirm effectiveness of a Registration Statement as of
5:00 pm Eastern time on a Trading Day. UBPS shall immediately notify the Holders
via facsimile of the effectiveness of a Registration Statement on the same
Trading Day that UBPS telephonically confirms effectiveness with the SEC, which
shall be the date requested for effectiveness of a Registration Statement.
UBPS
shall file, by 9:30 a.m. Eastern time on the second Trading Day following the
date on which the initial Registration Statement filed by UBPS pursuant to
this
Agreement is first declared effective by the SEC, a final Prospectus with the
SEC as required by Rule 424. Failure to so notify the Holder within two Trading
Days of such notification of effectiveness or failure to file a final Prospectus
as aforesaid shall be deemed an Event under Section 2(b). All selling
shareholders included on the applicable Registration Statement shall be given
notice of the effectiveness of such Registration Statement substantially at
the
same time.
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(b) If
(i) a
Registration Statement is not filed on or prior to the 15th day following its
Filing Date (ii) UBPS files a Registration Statement without affording the
Holders the opportunity to review and comment on the same as required by Section
3(a) herein; (iii) UBPS fails to file with the SEC a request for acceleration
in
accordance with Rule 461 promulgated under the Securities Act, within five
Trading Days of the date that UBPS is notified (orally or in writing, whichever
is earlier) by the SEC that a Registration Statement will not be “reviewed,” or
not subject to further review, (iv) prior to the 45th
day
following its Effectiveness Date, UBPS fails to file an amendment and otherwise
respond in writing to comments made by the SEC in respect of such Registration
Statement within 30 calendar days after the receipt of comments by or notice
from the SEC that such amendment is required in order for a Registration
Statement to be declared effective, (v) a Registration Statement filed or
required to be filed hereunder is not declared effective by the SEC by its
Effectiveness Date, (vi) after the Effectiveness Date, a Registration Statement
ceases for any reason to remain continuously effective as to all Registrable
Securities for which it is required to be effective, or the Holders are
otherwise not permitted to utilize the Prospectus therein to resell such
Registrable Securities for more than 20 consecutive calendar days or more than
an aggregate of 30 calendar days during any 12-month period (which need not
be
consecutive calendar days) (any such failure or breach being referred to as
an
“Event”,
and
for purposes of clause (i), (ii) or (v) the date on which such Event occurs,
or
for purposes of clause (iii) the date on which such five Trading Day period
is
exceeded, or for purposes of clause (iv) the date which such 30 calendar day
period is exceeded, or for purposes of clause (vi) the date on which such 20
or
30 calendar day period, as applicable, is exceeded being referred to as
“Event
Date”),
then
in addition to any other rights the Holders may have hereunder or under
applicable law, on each such Event Date and on each monthly anniversary of
each
such Event Date (if the applicable Event shall not have been cured by such
date)
until the applicable Event is cured, UBPS shall pay to each Holder partial
liquidated damages, equal to 1.0% of the gross proceeds received by UBPS from
the sale of the Units (or the ratable portion thereof for a partial month)
pursuant to the Subscription Agreement for any Registrable Securities then
held
by such Holder and not then registered for resale pursuant to an effective
Registration Statement. The parties agree that (1) in no event shall UBPS be
liable for liquidated damages under this Agreement in excess of 1.0% of the
aggregate gross proceeds received from the sale of the Units pursuant to the
Subscription Agreement in any 30-day period and (2) the maximum aggregate
liquidated damages payable to a Holder under this Agreement shall be 10.0%
of
the aggregate gross proceeds received from the sale of the Units pursuant to
the
Subscription Agreement. Notwithstanding anything herein to the contrary and
subject to the payment of liquidated damages as set forth above, in the event
all of the Registrable Securities are not registered by the Effectiveness Date
because the SEC determines any Registration Statement filed pursuant to this
Agreement constitutes a primary offering of securities by UBPS and/or requires
any Holder to be named as an underwriter, or otherwise restricts the number
of
Registrable Securities that can be registered in a given Registration Statement
(“SEC
Caused Event”),
Holders understand and agree that UBPS may reduce, on a pro-rata basis, the
total number of Registrable Securities to be registered on behalf of each such
Holder and that the 1% partial liquidated damages described in this Section
2(b)
shall be based on those securities not included in the Registration Statement,
rather than 1% of gross proceeds from the sale of the Units; provided,
however,
that in
such event, such partial liquidated damages shall only begin to accrue on and
after the 120th
day
after the Effectiveness Date. Notwithstanding anything herein to the contrary,
UBPS will not be liable for liquidated damages under this Agreement with respect
to any UBPS Warrants or the UBPS Warrant Shares. In the event of such reduction,
the affected Holders shall have demand registration rights during the term
of
the Effectiveness Period and the Holders acknowledge and agree the provisions
of
this paragraph may apply to more than one Registration Statement and that the
SEC may limit or condition any subsequent Registration Statement. The partial
liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata
basis for any portion of a month prior to the cure of an Event.
3. Registration
Procedures.
In
connection with UBPS’s obligations with respect to the registration of the
Registrable Securities hereunder, UBPS shall:
(a) Not
less
than five Trading Days prior to the filing of each Registration Statement and
not less than one Trading Day prior to the filing of any related Prospectus
or
any amendment or supplement thereto (including any document that would be
incorporated or deemed to be incorporated therein by reference), (i) furnish
to
each Holder copies of all such documents proposed to be filed, which documents
(other than those incorporated or deemed to be incorporated by reference) will
be subject to the review of such Holders, and (ii) cause its officers and
directors, counsel and independent certified public accountants to respond
to
such inquiries as shall be necessary, in the reasonable opinion of respective
counsel to each Holder to conduct a reasonable investigation within the meaning
of the Securities Act.
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(b) Not
file
a Registration Statement or any such Prospectus or any amendments or supplements
thereto to which the Holders of a majority of the Registrable Securities shall
reasonably object in good faith, provided that, UBPS is notified of such
objection in writing no later than five Trading Days after the Holders have
been
so furnished copies of a Registration Statement or one Trading Day after the
Holders have been so furnished copies of any related Prospectus or amendment
or
supplement thereto. Each Holder agrees to furnish to UBPS a completed
Questionnaire in the form attached to this Agreement as Annex B (a “Selling
Shareholder Questionnaire”)
not
less than two Trading Days prior to the Filing Date or by the end of the fourth
Trading Day following the date on which such Holder receives draft materials
in
accordance with this Section.
(c) (i)
prepare and file with the SEC such amendments, including post-effective
amendments, to a Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep a Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period and to prepare and file with the SEC such additional Registration
Statements in order to register for resale under the Securities Act all of
the
Registrable Securities; (ii) amend or supplement the related Prospectus by
any
required Prospectus supplement (subject to the terms of this Agreement), and
as
so supplemented or amended to be filed pursuant to Rule 424; (iii) respond
as
promptly as reasonably possible to any comments received from the SEC with
respect to a Registration Statement or any amendment thereto and as promptly
as
reasonably possible provide the Holders true and complete copies of all
correspondence from and to the SEC relating to a Registration Statement
(provided that UBPS may excise any information contained therein which would
constitute material non-public information as to any Holder which has not
executed a confidentiality agreement with UBPS); and (iv) comply in all material
respects with the provisions of the Securities Act and the Exchange Act with
respect to the disposition of all Registrable Securities covered by a
Registration Statement during the applicable period in accordance (subject
to
the terms of this Agreement) with the intended methods of disposition by the
Holders thereof set forth in such Registration Statement as so amended or in
such Prospectus as so supplemented.
(d) If
during
the Effectiveness Period, the number of Registrable Securities at any time
exceeds the number of shares of UBPS Common Stock then registered in a
Registration Statement, file as soon as reasonably practicable but in any case
prior to the applicable Filing Date, an additional Registration Statement
covering the resale by the Holders of not less than 100% of the number of such
Registrable Securities.
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(e) Notify
the Holders of Registrable Securities to be sold (which notice shall, pursuant
to clauses (iii) through (vi) hereof, shall also be accompanied by an
instruction to suspend the use of the Prospectus until the requisite changes
have been made) as promptly as reasonably possible (and, in the case of (i)(A)
below, not less than one Trading Day prior to such filing) and (if requested
by
any such Person) confirm such notice in writing no later than one Trading Day
following the day (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to a Registration Statement is proposed to be filed;
(B) when the SEC notifies UBPS whether there will be a “review” of such
Registration Statement and whenever the SEC comments in writing on such
Registration Statement; and (C) with respect to a Registration Statement or
any
post-effective amendment, when the same has become effective; (ii) of any
request by the SEC or any other Federal or state governmental authority for
amendments or supplements to a Registration Statement or Prospectus or for
additional information; (iii) of the issuance by the SEC or any other federal
or
state governmental authority of any stop order suspending the effectiveness
of a
Registration Statement covering any or all of the Registrable Securities or
the
initiation of any Proceedings for that purpose; (iv) of the receipt by UBPS
of
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale
in
any jurisdiction, or the initiation or threatening of any Proceeding for such
purpose; (v) of the occurrence of any event or passage of time that makes the
financial statements included in a Registration Statement ineligible for
inclusion therein or any statement made in a Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated therein
by
reference untrue in any material respect or that requires any revisions to
a
Registration Statement, Prospectus or other documents so that, in the case
of a
Registration Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading; and
(vi) the occurrence or existence of any pending corporate development with
respect to UBPS (including its subsidiaries) that UBPS believes may be material
and that, in the determination of UBPS, makes it not in the best interest of
UBPS to allow continued availability of a Registration Statement or Prospectus;
provided
that any
and all of such information shall remain confidential to each Holder until
such
information otherwise becomes public, unless disclosure by a Holder is required
by law; provided,
further,
that notwithstanding each Holder’s agreement to keep such information
confidential, the Holders make no acknowledgement that any such information
is
material, non-public information.
(f) Use
its
best efforts to avoid the issuance of, or, if issued, obtain the withdrawal
of
(i) any order suspending the effectiveness of a Registration Statement, or
(ii)
any suspension of the qualification (or exemption from qualification) of any
of
the Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment.
(g) Furnish
to each Holder, without charge, at least one conformed copy of each such
Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference to the extent requested by such Person, and
all exhibits to the extent requested by such Person (including those previously
furnished or incorporated by reference) promptly after the filing of such
documents with the SEC.
(h) Subject
to the terms of this Agreement, UBPS, on behalf of itself, its successors and
assigns, hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders in connection with the
offering and sale of the Registrable Securities covered by such Prospectus
and
any amendment or supplement thereto, except after the giving of any notice
pursuant to Section 3(d).
6
(i) Effect
a
filing with respect to the public offering contemplated by the Registration
Statement (an “Issuer
Filing”)
with
the National Association of Securities Dealers, Inc. (“NASD”)
Corporate Financing Department pursuant to NASD Rule 2710(b)(4) within one
Trading Day of the date that the Registration Statement is first filed with
the
SEC and pay the filing fee required by such Issuer Filing. UBPS shall use
commercially reasonable efforts to pursue the Issuer Filing until the NASD
issues a letter confirming that it does not object to the terms of the offering
contemplated by the Registration Statement.
(j) Prior
to
any resale of Registrable Securities by a Holder, use commercially reasonable
efforts to register or qualify or cooperate with the selling Holders in
connection with the registration or qualification (or exemption from the
Registration or qualification) of such Registrable Securities for the resale
by
the Holder under the securities or Blue Sky laws of such jurisdictions within
the United States as any Holder reasonably requests in writing, to keep each
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by each Registration Statement; provided, that UBPS shall
not
be required to (i) qualify generally to do business in any jurisdiction where
it
is not then so qualified, (ii) subject UBPS to any material tax in any such
jurisdiction where it is not then so subject or (iii) file a general consent
to
service of process in any such jurisdiction.
(k) If
requested by the Holders, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
to
be delivered to a transferee pursuant to a Registration Statement, which
certificates shall be free, to the extent permitted by the Securities Act,
of
all restrictive legends, and to enable such Registrable Securities to be in
such
denominations and registered in such names as any such Holders may
request.
(l) Upon
the
occurrence of any event contemplated by this Section 3, as promptly as
reasonably possible under the circumstances taking into account UBPS’s good
faith assessment of any adverse consequences to UBPS or its stockholders of
the
premature disclosure of such event, prepare a supplement or amendment, including
a post-effective amendment, to a Registration Statement or a supplement to
the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as
thereafter delivered, neither a Registration Statement nor such Prospectus
will
contain an untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary to make the statements therein,
in
light of the circumstances under which they were made, not misleading. If UBPS
notifies the Holders in accordance with clauses (iii) through (vi) of Section
3(d) above to suspend the use of any Prospectus until the requisite changes
to
such Prospectus have been made, then the Holders shall suspend use of such
Prospectus. UBPS will use its best efforts to ensure that the use of the
Prospectus may be resumed as promptly as is practicable. UBPS shall be entitled
to exercise its right under this Section 3(l) to suspend the availability of
a
Registration Statement and Prospectus, subject to the payment of partial
liquidated damages pursuant to Section 2(b), for a period not to exceed 60
calendar days (which need not be consecutive days) in any 12 month
period.
7
(m) Comply
with all applicable rules and regulations of the SEC.
(n) UBPS
may
require each selling Holder to furnish to UBPS a certified statement as to
the
number of shares of UBPS Common Stock beneficially owned by such Holder and,
if
required by the SEC, the natural persons thereof that have voting and
dispositive control over the shares. During any periods that UBPS is unable
to
meet its obligations hereunder with respect to the registration of the
Registrable Securities solely because any Holder fails to furnish such
information within three Trading Days of UBPS’s request, any liquidated damages
that are accruing at such time as to such Holder only shall be tolled and any
Event that may otherwise occur solely because of such delay shall be suspended
as to such Holder only, until such information is delivered to
UBPS.
4. Registration
Expenses.
All
fees and expenses incident to the performance of or compliance with this
Agreement by UBPS shall be borne by UBPS whether or not any Registrable
Securities are sold pursuant to a Registration Statement. The fees and expenses
referred to in the foregoing sentence shall include, without limitation, (i)
all
registration and filing fees (including, without limitation, fees and expenses
(A) with respect to filings required to be made with any Trading Market on
which
the Common Stock is then listed for trading, (B) in compliance with applicable
state securities or Blue Sky laws reasonably agreed to by UBPS in writing
(including, without limitation, fees and disbursements of counsel for UBPS
in
connection with Blue Sky qualifications or exemptions of the Registrable
Securities) and (C) if not previously paid by UBPS in connection with an Issuer
Filing, with respect to any filing that may be required to be made by any broker
through which a Holder intends to make sales of Registrable Securities with
NASD
Regulation, Inc. pursuant to the NASD Rule 2710, so long as the broker is
receiving no more than a customary brokerage commission in connection with
such
sale, (ii) printing expenses of UBPS (including, without limitation, expenses
of
printing certificates for Registrable Securities, (iii) messenger, telephone
and
delivery expenses of UBPS, (iv) fees and disbursements of counsel for UBPS,
(v)
Securities Act liability insurance, if UBPS so desires such insurance, and
(vi)
fees and expenses of all other Persons retained by UBPS in connection with
the
consummation of the transactions contemplated by this Agreement. In addition,
UBPS shall be responsible for all of its internal expenses incurred in
connection with the consummation of the transactions contemplated by this
Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense
of
any annual audit and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as required
hereunder. In no event shall UBPS be responsible for any broker or similar
commissions of any Holder, including, but not limited to, any legal fees or
other costs of the Holders.
8
5. Indemnification.
(a) Indemnification
by UBPS.
UBPS
shall, notwithstanding any termination of this Agreement, indemnify and hold
harmless each Holder, the officers, directors, members, partners, agents,
brokers (including brokers who offer and sell Registrable Securities as
principal as a result of a pledge or any failure to perform under a margin
call
of Common Stock), investment advisors and employees (and any other Persons
with
a functionally equivalent role of a Person holding such titles, notwithstanding
a lack of such title or any other title) of each of them, each Person who
controls any such Holder (within the meaning of Section 15 of the Securities
Act
or Section 20 of the Exchange Act) and the officers, directors, members,
shareholders, partners, agents and employees (and any other Persons with a
functionally equivalent role of a Person holding such titles, notwithstanding
a
lack of such title or any other title) of each such controlling Person, to
the
fullest extent permitted by applicable law, from and against any and all losses,
claims, damages, liabilities, costs (including, without limitation, reasonable
attorneys’ fees) and expenses (collectively, “Losses”),
as
incurred, arising out of or relating to (1) any untrue or alleged untrue
statement of a material fact contained in a Registration Statement, any
Prospectus or any form of prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of any Prospectus or
form
of prospectus or supplement thereto, in light of the circumstances under which
they were made) not misleading, or (2) any violation or alleged violation by
UBPS of the Securities Act, Exchange Act or any state securities law, or any
rule or regulation thereunder, in connection with the performance of its
obligations under this Agreement, except to the extent, but only to the extent,
that (i) such untrue statements or omissions are based solely upon information
regarding such Holder furnished in writing to UBPS by such Holder expressly for
use therein, or to the extent that such information relates to such Holder
or
such Holder’s proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use
in a
Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto (it being understood that the Holder has
approved Annex A hereto for this purpose) or (ii) in the case of an occurrence
of an event of the type specified in Section 3(e)(iii)-(vi), the use by such
Holder of an outdated or defective Prospectus after UBPS has notified such
Holder in writing that the Prospectus is outdated or defective and prior to
the
receipt by such Holder of the Advice contemplated in Section 6(d). UBPS shall
notify the Holders promptly of the institution, threat or assertion of any
Proceeding arising from or in connection with the transactions contemplated
by
this Agreement of which UBPS is aware.
9
(b) Indemnification
by Holders.
Each
Holder shall, severally and not jointly, indemnify and hold harmless UBPS,
and
each of its directors, officers, agents and employees, each Person who controls
UBPS (within the meaning of Section 15 of the Securities Act and Section 20
of
the Exchange Act), and the directors, officers, agents or employees of such
controlling Persons (and any other Persons with a functionally equivalent role
of a Person holding such titles, notwithstanding a lack of such title or any
other title, to the fullest extent permitted by applicable law, from and against
all Losses, as incurred, to the extent arising out of or based solely upon:
(x)
such Holder’s failure to comply with the prospectus delivery requirements of the
Securities Act or (y) any untrue or alleged untrue statement of a material
fact
contained in any Registration Statement, any Prospectus, or any form of
prospectus, or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission
of
a material fact required to be stated therein or necessary to make the
statements therein not misleading (i) to the extent, but only to the extent,
that such untrue statement or omission is contained in any information so
furnished in writing by such Holder to UBPS specifically for inclusion in such
Registration Statement or such Prospectus or (ii) to the extent that such
information relates to such Holder’s proposed method of distribution of
Registrable Securities and was reviewed and expressly approved in writing by
such Holder expressly for use in a Registration Statement (it being understood
that the Holder has approved Annex A hereto for this purpose), such Prospectus
or such form of Prospectus or in any amendment or supplement thereto or (iii)
in
the case of an occurrence of an event of the type specified in Section
3(e)(iii)-(vi), the use by such Holder of an outdated or defective Prospectus
after UBPS has notified such Holder in writing that the Prospectus is outdated
or defective and prior to the receipt by such Holder of the Advice contemplated
in Section 6(d). In no event shall the liability of any selling Holder hereunder
be greater in amount than the dollar amount of the net proceeds received by
such
Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) Conduct
of Indemnification Proceedings.
If any
Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified
Party”),
such
Indemnified Party shall promptly notify the Person from whom indemnity is sought
(the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall have the right to assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except (and only) to
the
extent that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or further review) that such
failure shall have prejudiced the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; (2) the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably satisfactory to
such
Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified
Party
and the Indemnifying Party, and counsel to the Indemnified Party shall
reasonably believe that a material conflict of interest is likely to exist
if
the same counsel were to represent such Indemnified Party and the Indemnifying
Party (in which case, if such Indemnified Party notifies the Indemnifying Party
in writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense thereof and the reasonable fees and expenses of no more than one
separate counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such Proceeding
effected without its written consent, which consent shall not be unreasonably
withheld or delayed. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending
Proceeding in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party from
all
liability on claims that are the subject matter of such Proceeding.
10
Subject
to the terms of this Agreement, all reasonable fees and expenses of the
Indemnified Party (including reasonable fees and expenses to the extent incurred
in connection with investigating or preparing to defend such Proceeding in
a
manner not inconsistent with this Section) shall be paid to the Indemnified
Party, as incurred, within ten Trading Days of written notice thereof to the
Indemnifying Party; provided, that the Indemnified Party shall promptly
reimburse the Indemnifying Party for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is judicially
determined to be not entitled to indemnification hereunder.
(d) Contribution.
If the
indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified
Party or insufficient to hold an Indemnified Party harmless for any Losses,
then
each Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in this Agreement, any reasonable attorneys’ or other fees or expenses incurred
by such party in connection with any Proceeding to the extent such party would
have been indemnified for such fees or expenses if the indemnification provided
for in this Section was available to such party in accordance with its
terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by
any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Holder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which
the
net proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that
such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, except in the case of fraud
by
such Holder.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
11
6. Miscellaneous.
(a) Remedies.
In the
event of a breach by UBPS or by a Holder, of any of their respective obligations
under this Agreement, each Holder or UBPS, as the case may be, in addition
to
being entitled to exercise all rights granted by law and under this Agreement,
including recovery of damages, will be entitled to specific performance of
its
rights under this Agreement. UBPS and each Holder agree that monetary damages
would not provide adequate compensation for any losses incurred by reason of
a
breach by it of any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific performance in respect
of
such breach, it shall not assert or shall waive the defense that a remedy at
law
would be adequate.
(b) No
Piggyback on Registrations.
Except
as set forth on Schedule 6(b) attached hereto, neither UBPS nor any of its
security holders (other than the Holders in such capacity pursuant hereto)
may
include securities of UBPS in any Registration Statement other than the
Registrable Securities. Except with respect to the shares set forth on Schedule
6(b) hereto, UBPS shall not file any other registration statements until there
is an effective Registration Statement(s) pursuant to which the Holders are
permitted to utilize a Prospectus to resell all Registrable Securities or such
Registrable Securities may be resold by the Holders pursuant to Rule 144(k),
provided that this Section 6(b) shall not prohibit UBPS from filing amendments
to registration statements filed prior to the date of this
Agreement.
(c) Compliance.
Each
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to a Registration Statement.
(d) Discontinued
Disposition.
Each
Holder agrees by its acquisition of Registrable Securities that, upon receipt
of
a notice from UBPS of the occurrence of any event of the kind described in
Section 3(e)(iii) through (vi), such Holder will forthwith discontinue
disposition of such Registrable Securities under a Registration Statement until
it is advised in writing (the “Advice”)
by
UBPS that the use of the applicable Prospectus (as it may have been supplemented
or amended) may be resumed. UBPS will use its best efforts to ensure that the
use of the Prospectus may be resumed as promptly as it practicable. UBPS agrees
and acknowledges that any periods during which the Holder is required to
discontinue the disposition of the Registrable Securities hereunder shall be
subject to the provisions of Section 2(b).
(e) Piggy-Back
Registrations.
If at
any time during the Effectiveness Period there is not an effective Registration
Statement covering all of the Registrable Securities and UBPS shall determine
to
prepare and file with the SEC a registration statement relating to an offering
for its own account or the account of others under the Securities Act of any
of
its equity securities, other than on Form S-4 or Form S-8 (each as promulgated
under the Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with the stock option
or
other employee benefit plans, then UBPS shall send to each Holder a written
notice of such determination and, if within fifteen days after the date of
such
notice, any such Holder shall so request in writing, UBPS shall include in
such
registration statement all or any part of such Registrable Securities such
Holder requests to be registered; provided,
however,
that,
UBPS shall not be required to register any Registrable Securities pursuant
to
this Section 6(e) that are eligible for resale pursuant to Rule 144(k)
promulgated under the Securities Act or that are the subject of a then effective
Registration Statement.
12
(f) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by UBPS and Holders holding at least 67% of the then outstanding
Registrable Securities. Notwithstanding the foregoing, a waiver or consent
to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders and that does not directly or indirectly
affect the rights of other Holders may be given by Holders of all of the
Registrable Securities to which such waiver or consent relates; provided,
however,
that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding
sentence.
(g) Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be delivered as set forth in the Subscription
Agreement.
(h) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties and shall inure to the benefit of
each
Holder. UBPS may not assign (except by merger) its rights or obligations
hereunder without the prior written consent of all of the Holders of the
then-outstanding Registrable Securities. Each Holder may assign their respective
rights hereunder in the manner and to the Persons as permitted under the
Subscription Agreement.
(i) No
Inconsistent Agreements.
Neither
UBPS nor any of its Subsidiaries has entered, as of the date hereof, nor shall
UBPS or any of its Subsidiaries, on or after the date of this Agreement, enter
into any agreement with respect to its securities, that would have the effect
of
impairing the rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof. Except as set forth on Schedule 6(i),
neither UBPS nor any of its subsidiaries has previously entered into any
agreement granting any registration rights with respect to any of its securities
to any Person that have not been satisfied in full.
(j) Execution
and Counterparts.
This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf’ format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf’ signature page were an original thereof.
13
(k) Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be determined in accordance with the provisions of
the
Subscription Agreement.
(l) Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any other remedies
provided by law.
(m) Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be
hereafter declared invalid, illegal, void or unenforceable.
(n) Headings.
The
headings in this Agreement are for convenience only, do not constitute a part
of
this Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
(o) Independent
Nature of Holders’ Obligations and Rights.
The
obligations of each Holder hereunder are several and not joint with the
obligations of any other Holder hereunder, and no Holder shall be responsible
in
any way for the performance of the obligations of any other Holder hereunder,
Nothing contained herein or in any other agreement or document delivered at
any
closing, and no action taken by any Holder pursuant hereto or thereto, shall
be
deemed to constitute the Holders as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Holders
are in any way acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Holder shall be entitled
to
protect and enforce its rights, including without limitation the rights arising
out of this Agreement, and it shall not be necessary for any other Holder to
be
joined as an additional party in any proceeding for such purpose.
**********************
14
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
UNITED
BENEFITS & PENSION SERVICES,
INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
[SIGNATURE
PAGE OF HOLDERS FOLLOWS]
15
Exhibit
4.2
[SIGNATURE
PAGE OF HOLDERS TO UBPS REGISTRATION RIGHTS AGREEMENT]
Name
of
Holder: _________________________________________________________
Signature
of Authorized Signatory of Investing Entity:
___________________________________
Name
of
Authorized Signatory:
_____________________________________________________
Title
of
Authorized Signatory:
______________________________________________________
[SIGNATURE
PAGES CONTINUE]
16
SCHEDULE
6(b)
UBPS
is
required to include in any Registration Statement filed with the SEC following
the completion of the Offering contemplated in the Memorandum 232,000 shares
of
UBPS Common Stock issuable upon conversion of the Bridge Notes (as defined
in
the Memorandum).
UBPS
is
required to include in a Registration Statement filed with the SEC following
the
completion of the Debt Offering (as defined in the Memorandum) and the Offering
contemplated in the Memorandum all of the shares issuable upon exercise of
the
Noteholder Warrants (as defined in the Memorandum).
17
SCHEDULE
6(i)
UBPS
previously entered into an Amended and Restated Note Purchase Agreement, which
requires UBPS to file a registration statement with the SEC to register for
resale [232,000] shares of UBPS Common Stock issuable upon conversion of the
Bridge Notes (as defined in the Memorandum) within 60 days after the closing
of
the Offering, or sooner if a registration statement registering any other UBPS
Common Stock is filed prior to the expiration of such 60-day period.
Pursuant
to an agreement entered into with the holders of the Senior Secured Notes (as
defined in the Memorandum), UBPS is required to include in a Registration
Statement filed with the SEC following the completion of the Debt Offering
(as
defined in the Memorandum) and the Offering contemplated in the Memorandum
all
of the shares issuable upon exercise of the Noteholder Warrants (as defined
in
the Memorandum).
18
ANNEX
A
Plan
of Distribution
Each
Selling Stockholder (the “Selling
Stockholders”)
of the
common stock and any of their pledgees, assignees and successors-in-interest
may, from time to time, sell any or all of their shares of common stock on
the
OTC Bulletin Board or any other stock exchange, market or trading facility
on
which the shares are traded or in private transactions. These sales may be
at
fixed or negotiated prices. A Selling Stockholder may use any one or more of
the
following methods when selling shares:
|
•
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
•
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
|
•
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
|
•
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
•
|
privately
negotiated transactions;
|
|
•
|
settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part;
|
| • |
broker-dealers
may agree with the Selling Stockholders to sell a specified number
of such
shares at a stipulated price per
share;
|
|
•
|
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or
otherwise;
|
|
•
|
a
combination of any such methods of sale;
or
|
|
•
|
any
other method permitted pursuant to applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act of 1933, as amended (the “Securities
Act”),
if
available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the Selling Stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated, but,
except as set forth in a supplement to this Prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in compliance
with
NASDR Rule 2440; and in the case of a principal transaction a markup or markdown
in compliance with NASDR IM-2440.
19
In
connection with the sale of the common stock or interests therein, the Selling
Stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the UBPS
Common Stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of the common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The Selling
Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Each Selling Stockholder has informed UBPS
that it does not have any written or oral agreement or understanding, directly
or indirectly, with any person to distribute the UBPS Common Stock. In no event
shall any broker-dealer receive fees, commissions and markups which, in the
aggregate, would exceed eight percent (8%).
UBPS
is
each required to pay certain fees and expenses incurred by them incident to
the
registration of the shares. UBPS has agreed to indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
Because
Selling Stockholders may be deemed to be “underwriters” within the meaning of
the Securities Act, they will be subject to the prospectus delivery requirements
of the Securities Act, including Rule 172 thereunder. In addition, any
securities covered by this prospectus which qualifies for sale pursuant to
Rule
144 under the Securities Act may be sold under Rule 144 rather than under this
prospectus. There is no underwriter or coordinating broker acting in connection
with the proposed sale of the resale shares by the Selling
Stockholders.
We
agreed
to keep this prospectus effective until the earlier of (i) the date on which
the
shares may be resold by the Selling Stockholders without registration and
without regard to any volume limitations by reason of Rule 144(k) under the
Securities Act or any other rule of similar effect or (ii) all of the shares
have been sold pursuant to this prospectus or Rule 144 under the Securities
Act
or any other rule of similar effect. The resale shares will be sold only through
registered or licensed brokers or dealers if required under applicable state
securities laws. In addition, in certain states, the resale shares may not
be
sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is
available and is complied with.
20
Under
applicable rules and regulations under the Securities Exchange Act of 1934,
any
person engaged in the distribution of the resale shares may not simultaneously
engage in market making activities with respect to the common stock for the
applicable restricted period, as defined in Regulation M, prior to the
commencement of the distribution. In addition, the Selling Stockholders will
be
subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including Regulation M, which may limit the timing
of
purchases and sales of shares of the common stock by the Selling Stockholders
or
any other person. We will make copies of this prospectus available to the
Selling Stockholders and have informed them of the need to deliver a copy of
this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
21
Annex
B
UNITED
BENEFITS & PENSION SERVICES, INC.
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of common stock (the “Registrable
Securities”)
of
United Benefits & Pension Services, Inc., a Delaware corporation (the
“Company”),
understands that the Company has filed or intends to file with the Securities
and Exchange Commission (the “SEC”)
a
registration statement (the “Registration.
Statement”)
for
the registration and resale under Rule 415 of the Securities Act of 1933, as
amended (the “Securities
Act”),
of
the Registrable Securities, in accordance with the terms of the Registration
Rights Agreement (the “Registration
Rights Agreement”)
to
which this document is annexed. A copy of the Registration Rights Agreement
is
available from the Company upon request at the address set forth below. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling securityholder in the
Registration Statement and the related prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Registration Statement and the related
prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling Securityholder”) of Registrable
Securities hereby elects to include the Registrable Securities owned by it
in
the Registration Statement.
22
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
| 1. |
Name.
|
|
(a)
|
Full
Legal Name of Selling
Securityholder
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities are
held:
|
|
(c)
|
Full
Legal Name of Natural Control Person (which means a natural person
who
directly or indirectly alone or with others has power to vote or
dispose
of the securities covered by the
questionnaire):
|
| 2. |
Address
for Notices to Selling
Securityholder:
|
| Telephone: | |
| Fax: | |
| Contact Person: | |
| 3. |
Broker-Dealer
Status:
|
|
(a)
|
Are
you a broker-dealer?
|
Yes No
|
(b)
|
if
“yes” to Section 3(a), did you receive your Registrable Securities as
compensation for investment banking services to the
Company.
|
Yes No
23
Note: If
no,
the SEC’s staff has indicated that you should be identified as an underwriter in
the Registration Statement.
|
(c)
|
Are
you an affiliate of a
broker-dealer?
|
Yes No
|
(d)
|
If
you are, an affiliate of a broker-dealer, do you certify that you
bought
the Registrable Securities in the ordinary course of business, and
at the
time of the purchase of the Registrable Securities to be resold,
you had
no agreements or understandings, directly or indirectly, with any
person
to distribute the Registrable
Securities?
|
Yes No
Note: If
no,
the SEC’s staff has indicated that you should be identified as an underwriter in
the Registration Statement.
| 4. |
Beneficial
Ownership of Other Securities of the Company Owned by the Selling
Securityholder.
|
Except
as set forth below in this Item 4, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the securities
issuable pursuant to the Subscription Agreement.
|
(a)
|
Type
and Amount of other securities beneficially owned by the Selling
Securityholder:
|
| 5. |
Relationships
with the Company:
|
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any
other material relationship with the Company (or its predecessors or affiliates)
during the past three years.
State
any
exceptions here:
24
The
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
at any time while the Registration Statement remains effective.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 5 and the inclusion of such
information in the Registration Statement and the related prospectus and any
amendments or supplements thereto. The undersigned understands that such
information will be relied upon by the Company in connection with the
preparation or amendment of the Registration Statement and the related
prospectus.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice
and Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
|
Beneficial Owner:
|
|
By:
|
||
|
Name:
|
||
|
Title:
|
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
25
