REGISTRATION RIGHTS AGREEMENT
EXHIBIT
4.1
This
Registration Rights Agreement
(this “Agreement”) is made and entered into as of May 22, 2007, between
Aeolus Pharmaceuticals, Inc., a Delaware corporation (the “Company”) and
each of the several purchasers signatory hereto (each such purchaser, a
“Purchaser” and, collectively, the “Purchasers”).
This
Agreement is made pursuant to the Securities Purchase Agreement, dated as of
the
date hereof, between the Company and each Purchaser (the “Purchase
Agreement”).
The
Company and each Purchaser hereby agrees as follows:
1. Definitions. Capitalized
terms used and not otherwise defined herein that are defined in the Purchase
Agreement shall have the meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms shall have
the following meanings:
“Advice”
shall have the meaning set forth in Section 6(d).
“Effectiveness
Period” shall mean the Initial Effectiveness Period or Subsequent
Effectiveness Period, as applicable.
“Event”
shall have the meaning set forth in Section 2(b).
“Event
Date” shall have the meaning set forth in Section 2(b).
“Holder”
or “Holders” means the holder or holders, as the case may be, from time
to time of Registrable Securities.
“Indemnified
Party” shall have the meaning set forth in Section 5(c).
“Indemnifying
Party” shall have the meaning set forth in Section 5(c).
“Initial
Filing Date” means, with respect to the Initial Registration Statement
required hereunder, the 30th calendar
day
following the date hereof.
“Initial
Registration Statement” shall have the meaning set forth in Section
2(a).
“Initial
Registration Statement Effectiveness Date” means, with respect to the
Initial Registration Statement required to be filed hereunder, the 60th calendar
day
following the Initial Filing Date (or, in the event of a “full review” by the
Commission, the 90th calendar
day
following the Initial Filing Date).
“Initial
Registration Statement Effectiveness Period” shall have the meaning set
forth in Section 2(a).
“Initial
Shares” means a number of Registrable Securities equal to the lesser of (i)
the total number of Registrable Securities and (ii) one-third of the number
of
issued and outstanding shares of Common Stock that are held by non-affiliates
of
the Company on the day immediately prior to the filing date of the Initial
Registration Statement.
“Losses”
shall have the meaning set forth in Section 5(a).
“Plan
of Distribution” shall have the meaning set forth in Section
2(a).
“Prospectus”
means the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated by the Commission pursuant to the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by a
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such
Prospectus.
“Registrable
Securities” means (i) all Shares, (ii) all Warrant Shares (assuming on the
date of determination the Warrants are exercised in full without regard to
any
exercise limitations therein), (iii) any additional shares of Common Stock
issuable in connection with any anti-dilution provisions in the Warrants (in
each case, without giving effect to any limitations on exercise set forth in
the
Warrants) 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 a registration statement on Form S-3 (unless the Company is
not then eligible to register for resale the Registrable Securities on Form
S-3
in which case such registration statement shall be on any form selected by
the
Company for which it then qualifies) which permits the sale thereunder of the
number and type of Registrable Securities (and any other securities of the
Company) to be included therein in accordance with this Agreement by the
applicable sellers in the manner described therein, including the Prospectus,
amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and all
material incorporated by reference or deemed to be incorporated by reference
in
such registration statement.
“Rule
415” means Rule 415 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended or interpreted from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same purpose and effect as such Rule.
“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended or interpreted from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same purpose and effect as such Rule.
“Selling
Shareholder Questionnaire” shall have the meaning set forth in Section
3(a).
“SEC
Guidance” means (i) any publicly-available written guidance, comments,
requirements or requests of the Commission staff and (ii) the Securities
Act.
“Subsequent
Filing Date” means, with respect to the Subsequent Registration Statement
required hereunder, November 21, 2007.
“Subsequent
Registration Statement” shall have the meaning set forth in
Section 2(a).
“Subsequent
Registration Statement Effectiveness Date” means, with respect to the
Subsequent Registration Statement required to be filed hereunder, the 60th calendar
day
following the Subsequent Filing Date (or, in the event of a “full review” by the
Commission, the 90th calendar
day
following the Subsequent Filing Date).
“Subsequent
Registration Statement Effectiveness Period” shall have the meaning set
forth in Section 2(b).
2. Shelf
Registration.
(a) On
or
prior to the Initial Filing Date, the Company shall prepare and file with the
Commission an initial Registration Statement (the “Initial Registration
Statement”) covering the resale of all or such maximum portion of the
Registrable Securities as permitted by SEC Guidance that are not then registered
on an effective Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415; provided, however, the
Company shall use diligent efforts to advocate with the Commission for the
registration of all of the Registrable Securities in accordance with the SEC
Guidance, including without limitation, the Manual of Publicly Available
Telephone Interpretations D.29. Except as provided in the foregoing
sentence, the Initial Registration Statement shall contain (unless otherwise
directed by at least an 85% majority in interest of the Holders) substantially
the “Plan of Distribution” attached hereto as Annex
A. Subject to the terms of this Agreement, the Company shall use
its best efforts to cause the Initial 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 Initial Registration Statement
Effectiveness Date, and shall use its best efforts to keep such Initial
Registration Statement continuously effective under the Securities Act until
all
Registrable Securities covered by such Initial Registration Statement have
been
sold, or may be sold without volume restrictions pursuant to Rule 144(k), as
determined by the counsel to the Company pursuant to a written opinion letter
to
such effect, addressed and acceptable to the Company’s transfer agent and the
affected Holders (the “Initial Registration Statement Effectiveness
Period”). The Company shall telephonically request effectiveness
of the Initial Registration Statement, and the Company shall notify the Holders
via facsimile or by e-mail of the effectiveness of the Initial Registration
Statement within one (1) Trading Day of the date upon which the Company
telephonically confirms effectiveness with the Commission which notice shall
be
made simultaneously with all selling shareholders on the Initial Registration
Statement. The Company shall, by 3:00 p.m. New York City time on the
first Trading Day after the effective date of such Initial Registration
Statement, file a final Prospectus with the Commission as required by Rule
424.
(b) On
or
prior to the Subsequent Filing Date, if any Registrable Securities are not
then
registered on an effective Registration Statement, the Company shall prepare
and
file with the Commission a subsequent Registration Statement (the “Subsequent
Registration Statement”) covering the resale of all or such maximum portion
of such Registrable Securities as permitted by SEC Guidance for an offering
to
be made on a continuous basis pursuant to Rule 415; provided,
however, provided that the Company shall use diligent efforts to advocate
with the Commission for the registration of all of the Registrable Securities
in
accordance with the SEC Guidance, including without limitation, the Manual
of
Publicly Available Telephone Interpretations D.29 . Except as
provided in the foregoing sentence, the Subsequent Registration Statement shall
contain (unless otherwise directed by at least an 85% majority in interest
of
the Holders) substantially the Plan of Distribution. Subject to the
terms of this Agreement, the Company shall use its best efforts to cause the
Subsequent 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 Subsequent Registration Statement Effectiveness Date, and shall use its
best
efforts to keep such Subsequent Registration Statement continuously effective
under the Securities Act for the until all Registrable Securities covered by
such Subsequent Registration Statement have been sold, or may be sold without
volume restrictions pursuant to Rule 144(k), as determined by the counsel to
the
Company pursuant to a written opinion letter to such effect, addressed and
acceptable to the Company’s transfer agent and the affected Holders (the
“Subsequent Registration Statement Effectiveness Period”). The
Company shall telephonically request effectiveness of the Initial Registration
Statement, and the Company shall notify the Holders via facsimile or by e-mail
of the effectiveness of the Initial Registration Statement within two (2)
Trading Days of the date upon which the Company telephonically confirms
effectiveness with the Commission. The Company shall, by 3:00 p.m.
New York City time on the second Trading Day after the effective date of such
Initial Registration Statement, file a final Prospectus with the Commission
as
required by Rule 424.
(c) Notwithstanding
any other provision of this Agreement, if any SEC Guidance sets forth a
limitation on the number of Registrable Securities permitted to be registered
on
a particular Registration Statement, unless otherwise directed in writing by
a
Holder as to its Registrable Securities, the number of Registrable Securities
to
be registered on such Registration Statement will first be reduced by
Registrable Securities represented by Warrant Shares (applied, in the case
that
some Warrant Shares may be registered, to the Holders on a pro rata basis based
on the total number of unregistered Warrant Shares held by such Holders), and
second by Registrable Securities represented by the Shares (applied, in the
case
that some Shares may be registered, to the Holders on a pro rata basis based
on
the total number of unregistered Shares held by such Holders); provided,
however, prior to any reduction as set forth in this sentence in the
number of Registrable Securities included in a Registration Statement, the
number of shares of Common Stock set forth on Schedule 6(b) hereto which shall
have been included on such Registration Statement shall be reduced by up to
100%.
(d) If:
(i)
the Initial Registration Statement is not filed on or prior to the Initial
Filing Date or the Subsequent Registration Statement is not filed on or prior
to
the Subsequent Filing Date (if the Company files the Initial Registration
Statement without affording the Holders the opportunity to review and comment
on
the same as required by Section 3(a) herein, the Company shall be deemed to
have
not satisfied this clause (i)), or (ii) the Company fails to file with the
Commission a request for acceleration of a Registration Statement in accordance
with Rule 461 promulgated by the Commission pursuant to the Securities Act,
within five Trading Days of the date that the Company is notified (orally or
in
writing, whichever is earlier) by the Commission that such Registration
Statement will not be “reviewed” or will not be subject to further review, or,
or (iii) as to, in the aggregate among all Holders on a pro-rata basis based
on
their purchase of the Securities pursuant to the Purchase Agreement, a
Registration Statement registering for resale all of the Initial Shares is
not
declared effective by the Commission by the Initial Effectiveness Date of the
Initial Registration Statement, or (iv) all of the Registrable Securities are
not registered for resale pursuant to one or more effective Registration
Statements on or before February 28, 2008, or (v) after the effective date
of a
Registration Statement, such Registration Statement ceases for any reason to
remain continuously effective as to all Registrable Securities included in
such
Registration Statement, or the Holders are otherwise not permitted to utilize
the Prospectus therein to resell such Registrable Securities, for more than
15
consecutive calendar days or more than an aggregate of 25 calendar days (which
need not be consecutive calendar days) during any 12-month period (any such
failure or breach being referred to as an “Event”, and for purposes of
clause (i), (iii) and (iv) the date on which such Event occurs, and for purpose
of clause (ii) the date on which such five Trading Day period is exceeded,
and
for purpose of clause (v) the date on which such 15 or 25 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, the Company shall pay to each Holder an amount in
cash, as partial liquidated damages and not as a penalty, equal to 1.5% of
the
aggregate purchase price paid by such Holder pursuant to the Purchase Agreement
for any unregistered Registrable Securities then held by such
Holder. The parties agree that the Company shall not be liable for
liquidated damages under this Agreement with respect to any Warrants or Warrant
Shares. If the Company fails to pay any partial liquidated damages
pursuant to this Section in full within seven days after the date payable,
the
Company will pay interest thereon at a rate of 18% per annum (or such lesser
maximum amount that is permitted to be paid by applicable law) to the Holder,
accruing daily from the date such partial liquidated damages are due until
such
amounts, plus all such interest thereon, are paid in full. The partial
liquidated damages pursuant to the terms hereof shall apply on a daily pro
rata
basis for any portion of a month prior to the cure of an Event.
(e) Subject
to SEC Guidance, if during the Effectiveness Period and after the Subsequent
Filing Date the number of Registrable Securities at any time exceeds 100% of
the
number of shares of Common Stock then registered in a Registration Statement,
then the Company shall file as soon as reasonably practicable an additional
Registration Statement covering the resale by the Holders of not less than
the
number of such Registrable Securities.
3. Registration
Procedures.
In
connection with the Company’s registration obligations under Section 2, the
Company shall:
(a) Not
less
than 3 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, the Company shall furnish to each Holder for
review copies of all such documents proposed to be filed (other than those
incorporated or deemed to be incorporated by reference) and consider in good
faith any reasonable comments proposed by any such Holder. The Company shall
not
file a Registration Statement or any such Prospectus or any amendments or
supplements thereto to which the Holders of a majority of the Registrable
Securities covered by such Registration Statement shall reasonably object in
good faith, provided that the Company is notified of such objection in writing
no later than 3 Trading Days after the Holders have been so furnished copies
of
a Registration Statement or 1 Trading Day after the Holders have been so
furnished copies of any related Prospectus or amendments or supplements thereto;
provided, however, that if a Holder does not respond to the
Company upon delivery of such documents within 3 or 1 Trading Day(s), as
applicable, such Holder shall be deemed to have consented to the information
included therein. Each Holder agrees to furnish to the Company 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 second Trading Day following the date
on
which such Holder receives draft materials in accordance with this
Section.
(b) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to a Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep a Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period and prepare and file with the Commission such additional Registration
Statements in order to register for resale under the Securities Act all of
the
Registrable Securities; (ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement (subject to the terms of
this
Agreement), and, as so supplemented or amended, to be filed pursuant to Rule
424; (iii) respond as promptly as reasonably possible to any comments received
from the Commission with respect to a Registration Statement or any amendment
thereto and provide as promptly as reasonably possible to the Holders via
facsimile or e-mail true and complete copies of all correspondence from and
to
the Commission relating to a Registration Statement (provided that the Company
may excise any information contained therein which would constitute material
non-public information as to any Holder which has not executed a confidentiality
agreement with the Company); and (iv) comply in all material respects with
the
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all Registrable Securities covered by a Registration Statement
during the applicable period in accordance (subject to the terms of this
Agreement) with the intended methods of disposition by the Holders thereof
set
forth in such Registration Statement as so amended or in such Prospectus as
so
supplemented.
(c) Notify
the Holders of Registrable Securities to be sold (which notice shall, pursuant
to clauses (iii) through (v) hereof, be accompanied by an instruction to suspend
the use of the Prospectus until the requisite changes have been made) as
promptly as reasonably possible (and, in the case of (i)(A) below, not less
than
one Trading Day prior to such filing) and (if requested by any such Person)
confirm such notice in writing no later than one Trading Day following the
day
(i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed; (B) when the
Commission notifies the Company whether there will be a “review” of such
Registration Statement and whenever the Commission comments in writing on such
Registration Statement; and (C) with respect to a Registration Statement or
any
post-effective amendment, when the same has become effective; (ii) of any
request by the Commission or any other federal or state governmental authority
for amendments or supplements to a Registration Statement or Prospectus or
for
additional information; (iii) of the issuance by the Commission or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose; (iv) of the
receipt by the Company 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; and (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; provided, further, that notwithstanding each
Holder’s agreement to keep such information confidential, each such Holder makes
no acknowledgement that any such information is material, non-public
information.
(d) Use
its
best efforts to avoid the issuance of, or, if issued, obtain the withdrawal
of
(i) any order stopping or suspending the effectiveness of a Registration
Statement, or (ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment.
(e) Furnish
to each Holder, without charge, at least one conformed copy of each such
Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference to the extent requested by such Person, and
all exhibits to the extent requested by such Person (including those previously
furnished or incorporated by reference) promptly after the filing of such
documents with the Commission; provided, that any such item which is available
on the XXXXX system need not be furnished in physical form.
(f) Subject
to the terms of this Agreement, the Company 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(c).
(g) The
Company shall effect a filing with respect to the public offering contemplated
by each Registration Statement (an “Issuer Filing”) with the National
Association of Securities Dealers, Inc. (“NASD”) Corporate Financing
Department pursuant to NASD Rule 2710 as described in proposed NASD Rule
2710(b)(10)(A)(i) within one Trading Day of the date that the Registration
Statement is first filed with the Commission and pay the filing fee required
by
such Issuer Filing. The Company shall use commercially reasonable
efforts to pursue the Issuer Filing until the NASD issues a letter confirming
that it does not object to the terms of the offering contemplated by the
Registration Statement as described in the Plan of Distribution attached hereto
as Annex A. A copy of the Issuer Filing and all related
correspondence to or from the NASD with respect thereto shall be provided to
FWS.
(h) Prior
to
any resale of Registrable Securities by a Holder, use its commercially
reasonable efforts to register or qualify or cooperate with the selling Holders
in connection with the registration or qualification (or exemption from the
Registration or qualification) of such Registrable Securities for the resale
by
the Holder under the securities or Blue Sky laws of such jurisdictions within
the United States as any Holder reasonably requests in writing, to keep each
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by each Registration Statement; provided, that the Company
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, subject the Company to any material tax
in
any such jurisdiction where it is not then so subject or file a general consent
to service of process in any such jurisdiction.
(i) If
requested by a Holder, cooperate with such Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
to
be delivered to a transferee pursuant to a Registration Statement, which
certificates shall be free, to the extent permitted by the Purchase Agreement,
of all restrictive legends, and to enable such Registrable Securities to be
in
such denominations and registered in such names as any such Holder may
request.
(j) Upon
the
occurrence of any event contemplated by Section 3(d), as promptly as reasonably
possible under the circumstances taking into account the Company’s good faith
assessment of any adverse consequences to the Company and its stockholders
of
the premature disclosure of such event, prepare a supplement or amendment,
including a post-effective amendment, to a Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed
to
be incorporated therein by reference, and file any other required document
so
that, as thereafter delivered, neither a Registration Statement nor such
Prospectus will contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. If the Company notifies the Holders in accordance with
clauses (iii) through (v) of Section 3(c) above to suspend the use of any
Prospectus until the requisite changes to such Prospectus have been made, then
the Holders shall suspend use of such Prospectus. The Company will
use its best efforts to ensure that the use of the Prospectus may be resumed
as
promptly as is practicable. The Company shall be entitled to exercise
its right under this Section 3(k) to suspend the availability of a Registration
Statement and Prospectus, subject to the payment of partial liquidated damages
otherwise required pursuant to Section 2(b), for a period not to exceed 60
calendar days (which need not be consecutive days) in any 12 month
period.
(k) Comply
with all applicable rules and regulations of the Commission.
(l) The
Company may require each selling Holder to furnish to the Company a certified
statement as to the number of shares of Common Stock beneficially owned by
such
Holder and the natural persons thereof that have voting and dispositive control
over the shares. During any periods that the Company 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 the Company’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, until
such
information is delivered to the Company and the Company may exclude such Holder
from such Registration Statement until such time as the information is provided;
provided, however, if the information is provided prior to 10 days
prior to the Effective Date of such Registration Statement, the Company shall
use commercially reasonable effort to include such Holder in such Registration
Statement.
(m) Notwithstanding
anything in this Agreement to the contrary, the Company and the Holders
expressly acknowledge and agree that in no event shall the Company be required
to deliver to any Holder, prior to the filing thereof, any copies of any
Registration Statement, Prospectus, Prospectus supplement or amendment,
amendment to a Registration Statement or post-effective amendment to a
Registration Statement unless such Registration Statement, Prospectus,
Prospectus supplement or amendment, amendment to a Registration Statement or
post-effective amendment to a Registration Statement contains a “Selling
Stockholders” section, “Plan of Distribution” section or risk factor that
addresses specifically this transaction or the Holders, in which case the
Company shall only be required to deliver to the Holders, prior to the filing
thereof and in accordance with the provisions of this Section 3, such portion
of
such Registration Statement, Prospectus, Prospectus supplement or amendment,
amendment to a Registration Statement or post-effective amendment to a
Registration Statement; provided, further, notwithstanding the
above, the Company shall promptly notify the Holders via e-mail as soon as
any
such filings are made.
4. Registration
Expenses. All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by the Company whether or
not
any Registrable Securities are sold pursuant to a Registration Statement. The
fees and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses of the Company’s counsel and auditors) (A) with respect to
filings made with the Commission, (B) with respect to filings required to be
made with any Trading Market on which the Common Stock is then listed for
trading, and (C) in compliance with applicable state securities or Blue Sky
laws
reasonably agreed to by the Company in writing (including, without limitation,
fees and disbursements of counsel for the Company in connection with Blue Sky
qualifications or exemptions of the Registrable Securities) and (D) if not
previously paid by the Company in connection with an Issuer Filing, with respect
to any filing that may be required to be made by any broker through which a
Holder intends to make sales of Registrable Securities with the NASD pursuant
to
NASD Rule 2710, so long as the broker is receiving no more than a customary
brokerage commission in connection with such sale, (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities), (iii) messenger, telephone and delivery expenses
incurred by the Company, (iv) fees and disbursements of counsel for the Company,
(v) Securities Act liability insurance, if the Company so desires such
insurance, and (vi) fees and expenses of all other Persons retained by the
Company in connection with the consummation of the transactions contemplated
by
this Agreement. In addition, the Company shall be responsible for all
of its internal expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement (including, without limitation,
all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit and the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder. In no event shall the
Company be responsible for any broker or similar commissions of any Holder
or
any legal fees or other costs of the Holders.
5. Indemnification.
(a) Indemnification
by the Company. The Company shall, notwithstanding any termination of this
Agreement, indemnify and hold harmless each Holder, the officers, directors,
members, partners, agents, investment advisors and employees (and any other
Persons with a functionally equivalent role of a Person holding such titles,
notwithstanding a lack of such title or any other title) of each of them, each
Person who controls any such Holder (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers, directors,
members, shareholders, partners, agents and employees (and any other Persons
with a functionally equivalent role of a Person holding such titles,
notwithstanding a lack of such title or any other title) of each such
controlling Person, to the fullest extent permitted by applicable law, from
and
against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable attorneys’ fees) and expenses (collectively,
“Losses”), as incurred, arising out of or relating to (1) any untrue or
alleged untrue statement of a material fact contained in a Registration
Statement, any Prospectus or any form of prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or
relating to any omission or alleged omission of a material fact required to
be
stated therein or necessary to make the statements therein (in the case of
any
Prospectus or supplement thereto, in light of the circumstances under which
they
were made) not misleading or (2) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act or any state securities law,
or
any rule or regulation thereunder, in connection with the performance of its
obligations under this Agreement, except to the extent, but only to the extent,
that (i) such untrue statements or omissions are based solely upon information
regarding such Holder furnished in writing to the Company by such Holder
expressly for use therein, or to the extent that such information relates to
such Holder or such Holder’s proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in a Registration Statement, such Prospectus or in any
amendment or supplement thereto (it being understood that the Holder has
approved Annex A hereto for this purpose) or (ii) in the case of an occurrence
of an event of the type specified in Section 3(c), the use by such Holder of
an
outdated or defective Prospectus after the Company has notified such Holder
in
writing that the Prospectus is outdated or defective and prior to the receipt
by
such Holder of the Advice contemplated in Section 6(d). The Company
shall notify the Holders promptly of the institution, threat or assertion of
any
Proceeding arising from or in connection with the transactions contemplated
by
this Agreement of which the Company is aware.
(b) Indemnification
by Holders. Each Holder shall, severally and not jointly, indemnify and hold
harmless the Company, its directors, officers, agents and employees, each Person
who controls the Company (within the meaning of Section 15 of the Securities
Act
and Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling Persons, to the fullest extent permitted by
applicable law, from and against all Losses, as incurred, to the extent arising
out of or based solely upon: (x) such Holder’s failure to comply with the
prospectus delivery requirements of the Securities Act, including, without
limitation, such Holder’s use of an outdated or defective Prospectus after the
Company 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), (y) following the removal of the legend specified in Section
4.1(b) of the Purchase Agreement, such Holder’s sale or transfer of any
Registrable Securities other than (1) pursuant to an effective registration
statement covering the resale of such Registrable Securities and in accordance
with the plan of distribution set forth therein or (2) otherwise in accordance
with all applicable federal and state securities laws or (z) any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, any Prospectus, or in any amendment or supplement thereto or in
any
preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading. The indemnification provided
for in the foregoing clause (z) shall be only to the extent, that (i) such
untrue statement or omission is contained in any information so furnished in
writing by such Holder to the Company specifically for inclusion in such
Registration Statement or such Prospectus or (ii) 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 in any amendment or supplement
thereto. 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. Notwithstanding anything herein to the
contrary, in no event shall a Holder be required to indemnify the Company
hereunder in connection with the delivery of an outdated or defective Prospectus
if the Company failed to notify such Holder in writing that the Prospectus
is
outdated or defective at such time.
(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 such failure
shall have materially prejudiced the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (3) the named
parties to any such Proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party, and counsel to the
Indemnified Party shall reasonably believe that a material conflict of interest
is likely to exist if the same counsel were to represent such Indemnified Party
and the Indemnifying Party (in which case, if such Indemnified Party notifies
the Indemnifying Party in writing that it elects to employ separate counsel
at
the expense of the Indemnifying Party, the Indemnifying Party shall not have
the
right to assume the defense thereof and the reasonable fees and expenses of
no
more than one separate counsel shall be at the expense of the Indemnifying
Party). The Indemnifying Party shall not be liable for any settlement
of any such Proceeding effected without its written consent, which consent
shall
not be unreasonably withheld or delayed. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending Proceeding in respect of which any Indemnified Party
is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter
of
such Proceeding.
Subject
to the terms of this Agreement, all reasonable fees and expenses of the
Indemnified Party (including reasonable fees and expenses to the extent incurred
in connection with investigating or preparing to defend such Proceeding in
a
manner not inconsistent with this Section) shall be paid to the Indemnified
Party, as incurred, within ten Trading Days of written notice thereof to the
Indemnifying Party; provided, that the Indemnified Party shall promptly
reimburse the Indemnifying Party for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is judicially
determined to be not entitled to indemnification hereunder.
(d) Contribution.
If the indemnification under Section 5(a) or 5(b) is unavailable to an
Indemnified Party, then each Indemnifying Party shall contribute to the amount
paid or payable by such Indemnified Party, in such proportion as is appropriate
to reflect the relative fault of the Indemnifying Party and Indemnified Party
in
connection with the actions, statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The relative
fault of such Indemnifying Party and Indemnified Party shall be determined
by
reference to, among other things, whether any action in question, including
any
untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and
the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount
paid or payable by a party as a result of any Losses shall be deemed to include,
subject to the limitations set forth in this Agreement, any reasonable
attorneys’ or other fees or expenses incurred by such party in connection with
any Proceeding to the extent such party would have been indemnified for such
fees or expenses if the indemnification provided for in this Section was
available to such party in accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by
any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no
Holder shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the net proceeds actually received by such Holder from
the sale of the Registrable Securities subject to the Proceeding exceeds the
amount of any damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
6. Miscellaneous.
(a) Remedies. In
the event of a breach by the Company or by a Holder of any of their respective
obligations under this Agreement, each Holder or the Company, as the case may
be, in addition to being entitled to exercise all rights granted by law and
under this Agreement, including recovery of damages, shall be entitled to
specific performance of its rights under this Agreement. The Company
and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of
the
provisions of this Agreement and hereby further agrees that, in the event of
any
action for specific performance in respect of such breach, it shall not assert
or shall waive the defense that a remedy at law would be adequate.
(b) No
Piggyback on Registrations; Prohibition on Filing Other Registration
Statements. Except as set forth on Schedule 6(b) attached hereto,
neither the Company nor any of its security holders (other than the Holders
in
such capacity pursuant hereto) may include securities of the Company in any
Registration Statements other than the Registrable Securities. The
Company shall not file any other registration statements until all Registrable
Securities are registered pursuant to a Registration Statement that is declared
effective by the Commission, provided that this Section 6(b) shall not prohibit
the Company from filing amendments to registration statements filed prior to
the
date of this Agreement. Any such rights shall be subject to customary
underwriter cutbacks at the discretion of the underwriter.
(c) Compliance.
Each Holder covenants and agrees that it will comply with the prospectus
delivery requirements of the Securities Act as applicable to it in connection
with sales of Registrable Securities pursuant to a Registration
Statement.
(d) Discontinued
Disposition. By its acquisition of Registrable Securities, each
Holder agrees that, upon receipt of a notice from the Company of the occurrence
of any event of the kind described in Section 3(c), such Holder will forthwith
discontinue disposition of such Registrable Securities under a Registration
Statement until it is advised in writing (the “Advice”) by the Company
that the use of the applicable Prospectus (as it may have been supplemented
or
amended) may be resumed. The Company will use its best efforts to
ensure that the use of the Prospectus may be resumed as promptly as it
practicable. The Company agrees and acknowledges that any periods
during which the Holder is required to discontinue the disposition of the
Registrable Securities hereunder shall be subject to the provisions of Section
2(b).
(e) Piggy-Back
Registrations. If, at any time during the Effectiveness Period, there is not
an effective Registration Statement covering all of the Registrable Securities
and the Company shall determine to prepare and file with the Commission a
registration statement relating to an offering for its own account or the
account of others under the Securities Act of any of its equity securities,
other than on Form S-4 or Form S-8 (each as promulgated under the Securities
Act) or their then equivalents relating to equity securities to be issued solely
in connection with any acquisition of any entity or business or equity
securities issuable in connection with the Company’s stock option or other
employee benefit plans, then the Company shall deliver to each Holder a written
notice of such determination and, if within five days after the date of the
delivery of such notice, any such Holder shall so request in writing, the
Company shall include in such registration statement all or any part of such
Registrable Securities such Holder requests to be registered; provided,
however, that the Company shall not be required to register any
Registrable Securities pursuant to this Section 6(e) that are eligible for
resale pursuant to Rule 144(k) promulgated by the Commission pursuant to the
Securities Act or that are the subject of a then effective Registration
Statement
(f) Amendments
and Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless
the
same shall be in writing and signed by the Company and the Holders of a majority
of the then outstanding Registrable Securities (including, for this purpose
any
Registrable Securities issuable upon exercise or conversion of any
Security). If a Registration Statement does not register all of the
Registrable Securities pursuant to a waiver or amendment done in compliance
with
the previous sentence, then the number of Registrable Securities to be
registered for each Holder shall be reduced pro rata among all Holders and
each
Holder shall have the right to designate which of its Registrable Securities
shall be omitted from such Registration Statement. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of a Holder or some Holders
and that does not directly or indirectly affect the rights of other Holders
may
be given by such Holder or Holders of all of the Registrable Securities to
which
such waiver or consent relates; provided, however, that the
provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the first sentence of this
Section 6(f).
(g) Notices.
Any and all notices or other communications or deliveries required or permitted
to be provided hereunder shall be delivered as set forth in the Purchase
Agreement.
(h) Successors
and Assigns. This Agreement shall inure to the benefit of and be binding
upon the successors and permitted assigns of each of the parties and shall
inure
to the benefit of each Holder. The Company may not assign (except by merger)
its
rights or obligations hereunder without the prior written consent of all of
the
Holders of the then outstanding Registrable Securities. Each Holder may assign
their respective rights hereunder in the manner and to the Persons as permitted
under the Purchase Agreement.
(i) No
Inconsistent Agreements. Neither the Company nor any of its Subsidiaries has
entered, as of the date hereof, nor shall the Company or any of its
Subsidiaries, on or after the date of this Agreement, enter into any agreement
with respect to its securities, that would have the effect of impairing the
rights granted to the Holders in this Agreement or otherwise conflicts with
the
provisions hereof. Except as set forth on Schedule 6(i),
neither the Company nor any of its Subsidiaries has previously entered into
any
agreement granting any registration rights with respect to any of its securities
to any Person that have not been satisfied in full.
(j) Execution
and Counterparts. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and
the
same agreement and shall become effective when counterparts have been signed
by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission or by e-mail delivery of a
“.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof.
(k) Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined in
accordance with the provisions of the Purchase Agreement.
(l) Cumulative
Remedies. The remedies provided herein are cumulative and not exclusive of
any other remedies provided by law.
(m) Severability.
If any term, provision, covenant or restriction of this Agreement is held by
a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be
hereafter declared invalid, illegal, void or unenforceable.
(n) Headings.
The headings in this Agreement are for convenience only, do not constitute
a
part of the Agreement and shall not be deemed to limit or affect any of the
provisions hereof.
(o) Independent
Nature of Holders’ Obligations and Rights. The obligations of each Holder
hereunder are several and not joint with the obligations of any other Holder
hereunder, and no Holder shall be responsible in any way for the performance
of
the obligations of any other Holder hereunder. Nothing contained herein or
in
any other agreement or document delivered at any closing, and no action taken
by
any Holder pursuant hereto or thereto, shall be deemed to constitute the Holders
as a partnership, an association, a joint venture or any other kind of entity,
or create a presumption that the Holders are in any way acting in concert with
respect to such obligations or the transactions contemplated by this Agreement.
Each Holder shall be entitled to protect and enforce its rights, including
without limitation the rights arising out of this Agreement, and it shall not
be
necessary for any other Holder to be joined as an additional party in any
proceeding for such purpose.
********************
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
AEOLUS
PHARMECEUTICALS, INC.
|
|
By:____/s/
Xxxxxxx X. McManus___________________
Name: Xxxxxxx
X. XxXxxxx
Title: Chief
Financial Officer
|
[SIGNATURE
PAGE OF HOLDERS FOLLOWS]
[SIGNATURE
PAGE OF HOLDERS TO AOLS RRA]
Name
of
Holder: __________________________
Signature
of Authorized Signatory of Holder: __________________________
Name
of
Authorized Signatory: _________________________
Title
of
Authorized Signatory: __________________________
[SIGNATURE
PAGES CONTINUE]
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.
In
connection with the sale of the common stock or interests therein, the Selling
Stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of the common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The
Selling Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Each Selling
Stockholder has informed the Company that it does not have any written or oral
agreement or understanding, directly or indirectly, with any person to
distribute the Common Stock. In no event shall any broker-dealer receive fees,
commissions and markups which, in the aggregate, would exceed eight percent
(8%).
The
Company is required to pay certain fees and expenses incurred by the Company
incident to the registration of the shares. The Company has agreed to
indemnify the Selling Stockholders against certain losses, claims, damages
and
liabilities, including liabilities under the Securities Act.
Because
Selling Stockholders may be deemed to be “underwriters” within the meaning of
the Securities Act, they will be subject to the prospectus delivery requirements
of the Securities Act including Rule 172 thereunder. In addition, any
securities covered by this prospectus which qualify for sale pursuant to Rule
144 under the Securities Act may be sold under Rule 144 rather than under this
prospectus. There is no underwriter or coordinating broker acting in
connection with the proposed sale of the resale shares by the Selling
Stockholders.
We
agreed
to keep this prospectus effective until the earlier of (i) the date on which
the
shares may be resold by the Selling Stockholders without registration and
without regard to any volume limitations by reason of Rule 144(k) under the
Securities Act or any other rule of similar effect or (ii) all of the shares
have been sold pursuant to this prospectus or Rule 144 under the Securities
Act
or any other rule of similar effect. The resale shares will be sold
only through registered or licensed brokers or dealers if required under
applicable state securities laws. In addition, in certain states, the resale
shares may not be sold unless they have been registered or qualified for sale
in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged
in
the distribution of the resale shares may not simultaneously engage in market
making activities with respect to the common stock for the applicable restricted
period, as defined in Regulation M, prior to the commencement of the
distribution. In addition, the Selling Stockholders will be subject
to applicable provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of purchases
and
sales of shares of the common stock by the Selling Stockholders or any other
person. We will make copies of this prospectus available to the
Selling Stockholders and have informed them of the need to deliver a copy of
this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
Annex
B
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of common stock (the “Registrable
Securities”) of Aeolus Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), understands that the Company has filed or intends to file
with the Securities and Exchange Commission (the “Commission”) a
registration statement (the “Registration Statement”) for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the “Securities Act”), of the Registrable Securities, in accordance with
the terms of the Registration Rights Agreement (the “Registration Rights
Agreement”) to which this document is annexed. A copy of the
Registration Rights Agreement is available from the 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.
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 this
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
|
Note:
|
If
“no” to Section 3(b), the Commission’s staff has indicated that you should
be identified as an underwriter in the Registration
Statement.
|
|
|
(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
purchased
the Registrable Securities in the ordinary course of business, and
at the
time of the purchase of the Registrable Securities to be resold,
you had
no agreements or understandings, directly or indirectly, with any
person
to distribute the Registrable
Securities?
|
Yes No
|
Note:
|
If
“no” to Section 3(d), the Commission’s staff has indicated that you should
be identified as an underwriter in the Registration
Statement.
|
|
|
4. Beneficial
Ownership of Securities of the 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 Purchase 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:
|
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.
Date: Beneficial
Owner:
By:
Name:
Title:
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
