Exhibit 10.14
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of this 30 day of June, 2004 by and among XxxxXxxx.xxx, a Nevada
corporation (the "FindWhat"), and each of the persons listed on the signature
page of this Agreement (the "Affiliates").
RECITALS
A. FindWhat, Who Merger Corp., a Delaware corporation and a wholly
owned subsidiary of FindWhat ("Who Merger Corp."), and Espotting Media Inc.
("Espotting") have entered into an Amended and Restated Agreement and Plan of
Merger dated as of February 9, 2004 (the "Amended Merger Agreement"), pursuant
to which Who Merger Corp. is merging with and into Espotting as described in the
Amended Merger Agreement, whereby each share of Espotting Capital Stock issued
and outstanding immediately prior to the Effective Time will be converted into
and represent the right to receive cash and a number of FindWhat Common Shares
equal to the Exchange Ratio (capitalized terms not otherwise defined herein
shall have the meanings set forth in the Amended Merger Agreement).
B. Pursuant to the terms of the Amended Merger Agreement, FindWhat has
agreed to provide Affiliates with certain registration rights for the shares of
FindWhat Common Stock each is acquiring pursuant to the Amended Merger Agreement
pursuant to and in accordance with the terms and conditions contained in this
Agreement.
NOW, THEREFORE, in consideration of the mutual benefits to be derived
from this Agreement, FindWhat and the Affiliates agree as follows:
AGREEMENT
1. REGISTRATION RIGHTS.
1.1 Definitions. For purposes of this Agreement:
(a) Registration. The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a shelf
registration statement pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "Securities Act"), and the declaration or ordering of effectiveness
of such registration statement.
(b) Registrable Securities. The term "Registrable Securities" means all
of FindWhat Common Shares issued to Affiliates pursuant to the Amended Merger
Agreement and any FindWhat Common Shares issued as a dividend or other
distribution with respect thereto, or any securities issued in exchange for or
in replacement of the FindWhat Common Shares; excluding in all cases, however,
any Registrable Securities sold by a person in a transaction in which rights
under this Section 1 are not assigned in accordance with this Agreement or any
Registrable Securities sold to the public.
1.2 Registration Obligations of FindWhat.
(a) FindWhat's Undertaking. On or before the sixtieth (60th) day
following the Closing Date (the "Filing Date"), FindWhat shall file a
registration statement on Form S-3 for a continuous registered shelf offering
under Rule 415 of the Securities Act (the "Shelf Registration Statement")
covering the registration of all Registrable Securities (the "Shelf Registered
Securities"), provided, however, that FindWhat shall in all cases use its best
efforts to file such Shelf Registration Statement on or before the thirtieth
(30th) day following the Closing Date. FindWhat shall use its commercially
reasonable efforts to: (i) cause the Shelf Registration Statement and the
registration of the Shelf Registered Securities thereunder to be declared
effective by the U. S. Securities and Exchange Commission (the "SEC") as soon as
commercially reasonable following the Filing Date; and (ii) continuously
maintain the effectiveness of the Shelf Registration Statement at all times
following the Effective Time until the earliest to occur of the following
events: (A) the date on which all of the Registrable Securities are eligible for
sale pursuant to Rule 144(k) (or any successor provision) under the Securities
Act; (B) notification to FindWhat that all Shelf Registered Securities have been
sold for the accounts of Affiliates; or (C) a request by all of the Affiliates
having unsold Shelf Registered Securities that the Registration Statement be
terminated. In addition, FindWhat shall, as expeditiously as possible:
(i) Prepare and file with the SEC such amendments and
supplements to the Shelf Registration Statement and the prospectus used
in connection therewith as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
Shelf Registered Securities;
(ii) Furnish to Affiliates such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they
may reasonably request in order to facilitate the disposition of the
Shelf Registered Securities owned by Affiliates;
(iii) Use its best efforts to register and qualify the Shelf
Registered Securities under such other securities or Blue Sky laws of
such jurisdictions of the United States of America as shall be
reasonably requested by an Affiliate, provided, that FindWhat shall not
be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of
process in any such states or jurisdictions; and
(iv) Promptly notify the Affiliates when the Registration
Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed and,
with respect to such registration statement or any post-effective
amendment, when the same has become effective.
(v) Cooperate with the Affiliates to facilitate the timely
preparation and delivery of certificates representing Shelf Registered
Securities to be sold, which certificates shall conform to the
requirements of the Nasdaq National Market or any securities exchange
on which the FindWhat Common Stock or such other securities then
constituting the Shelf Registered Shares are then listed or admitted to
trading.
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(vi) Take all other commercially reasonable actions necessary
to expedite and facilitate disposition by Affiliates of the Shelf
Registered Securities pursuant to the Shelf Registration Statement.
(vii) Notify each Affiliate at any time when a prospectus
relating to the Shelf Registration Statement is required to be
delivered under the Act that the prospectus does not comply with the
Act or of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing, and then amend or supplement such registration statement and
prospectus in order to correct any such noncompliance, misstatement or
omission as soon as reasonably practicable.
(viii) Cause all such Shelf Registered Shares registered
pursuant hereunder to be listed on each securities exchange or national
quotation system on which similar securities issued by FindWhat are
then listed.
(ix) Furnish, at the request of any Affiliate on the date the
Shelf Registration Statement with respect to such securities becomes
effective, (i) an opinion, dated such date, of the counsel representing
FindWhat for the purposes of such registration, in form and substance
as is customarily given in connection with a registration of this
nature, addressed to the Affiliates and (ii) a letter, dated such date,
from the independent certified public accountants of FindWhat, in form
and substance as is customarily given by independent certified public
accountants in connection with a registration of this nature, addressed
to the Affiliates.
(x) Notify each Affiliate (a) of any request by the SEC or any
other federal or state governmental authority during the period of
effectiveness of the Shelf Registration Statement for amendments or
supplements to the registration statement or related prospectus or for
additional information relating to the registration statement, (b) of
the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Shelf
Registration Statement or the initiation of any proceedings for that
purpose, or (c) of the receipt by FindWhat of any notification with
respect to the suspension of the qualification or exemption from
qualification of any of the Shelf Registration Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(b) Expenses. Affiliates shall bear all discounts, commissions or other
amounts payable to underwriters or brokers and fees and disbursements of counsel
for Affiliates in connection with a sale of Shelf Registered Securities by
Affiliates. All other expenses incurred in connection with a sale of Shelf
Registered Securities pursuant to this Agreement, including, without limitation
all federal and "blue sky" registration and qualification fees, printers' and
accounting fees, and fees and disbursements of counsel for FindWhat shall be
borne by FindWhat.
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(c) Suspension of Sales.
(i) Notwithstanding anything in this Agreement to the
contrary, FindWhat may prohibit offers and sales of Shelf Registered
Securities at any time if (A) it is in possession of material,
non-public information, (B) the Board of Directors of FindWhat
determines in good faith that disclosure of such material non-public
information would not be in the best interests of FindWhat and the
FindWhat Stockholders and (C) the board of directors of FindWhat
determines (based on the written opinion of its corporate outside
counsel delivered to each Affiliate) that such prohibition is necessary
in order to avoid a requirement to disclose such material non-public
information.
(ii) Each period during which any prohibition of offers and
sales of Shelf Registered Securities is in effect pursuant to Section
1.2(c)(i) is referred to herein as a "Suspension Period." A Suspension
Period shall commence on and include the date on which holders of Shelf
Registered Securities receive written notice from FindWhat (in
accordance with the notice provisions of this Agreement) that offers
and sales of Shelf Registered Securities cannot be made thereunder in
accordance with Section 1.2(c)(i) and shall end on the date on which
each holder of Shelf Registered Securities either receives copies of a
prospectus supplement or is advised in writing by FindWhat that offers
and sales of Shelf Registered Securities and use of the prospectus may
be resumed; provided, however, that all Suspension Periods shall not
exceed sixty (60) days during any period of twelve consecutive calendar
months (nor more than twenty (20) consecutive days for any one
Suspension Period) and each Suspension Period shall be followed by at
least thirty (30) consecutive days during which no Suspension Period is
in effect.
(iii) Notwithstanding anything in this Agreement to the
contrary, during any Suspension Period, neither FindWhat nor any other
person to whom FindWhat shall have given registration rights with
respect to its securities pursuant to this Agreement shall be entitled
to make offers and sales of FindWhat's securities pursuant to a
registration statement filed under the Securities Act.
(d) No Other Securities Included. FindWhat represents and warrants that
no other person or entity has any rights to include any securities of FindWhat
in the Shelf Registration Statement, and agrees that it will not grant any such
rights to any person or entity.
1.3 Furnish Information.
(a) To make available the benefits of Rules 144 and 145 under the
Securities Act and any other rule or regulation of the SEC that may permit the
sale of the Shares to the public without registration by Affiliates, FindWhat
agrees to use its best efforts to:
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(i) make and keep public information regarding FindWhat
available (as those terms are understood and defined in Rule 144
promulgated under the Securities Act) at all times during the
registration period of the Shelf Registration Statement or such longer
period ending on the date upon which Affiliates no longer need to rely
on Rule 144;
(ii) file with the SEC in a timely manner all reports and
other documents required of FindWhat under the Securities Act and the
Securities Exchange Act of 1934; and
(iii) so long as an Affiliate owns any restricted shares of
any class of FindWhat's securities, furnish to such Affiliate upon
written request a written statement by FindWhat that all reports and
filings that are necessary to be filed by FindWhat for such Affiliate
to avail itself of Rule 144 or 145 promulgated under the Securities Act
have been filed, a copy of the most recent annual or quarterly report
of FindWhat, and any other reports and documents as an Affiliate may
reasonably request in availing itself of any rule or regulation of the
SEC that permits the selling of any such securities without
registration.
(b) Affiliates agree to use their respective best efforts to furnish to
FindWhat such information regarding it, the Registrable Securities held by it,
and the intended method of disposition of such securities as shall be required
to timely effect the registration of its Registrable Securities.
2. INDEMNIFICATION.
2.1. Indemnification by FindWhat. FindWhat agrees to indemnify and hold
harmless each Affiliate, and each person, if any, who controls such Affiliate
within the meaning of the Securities Act or the Securities Exchange Act of 1934,
as amended (the "Exchange Act") against all expenses, claims, losses, damages,
or liabilities, including reasonable attorneys' fees, (collectively a
"liability"), to which they may become subject under the Securities Act, the
Exchange Act, state securities law, or any rule or regulation promulgated under
any of the foregoing, or at common law, arising out of or based upon: (i) any
untrue statement or alleged untrue statement of any material fact contained in
the Shelf Registration Statement, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereto; (ii) any omission or
alleged omission to state a material fact required to be stated in the Shelf
Registration Statement, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or necessary in order to make
any statement in the Shelf Registration Statement, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereto, not
misleading; or (iii) any violation or alleged violation by FindWhat of the
Securities Act, the Exchange Act, state securities law, or any rule or
regulation promulgated under any of the foregoing, or at common law.
Notwithstanding the foregoing, FindWhat will not be liable to any such person to
the extent that any liability arises out of or is based upon any untrue
statement or omission made in the Shelf Registration Statement, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to FindWhat by or on behalf of Affiliates expressly for use in the Shelf
Registration Statement, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto. Additionally, FindWhat will not
be required to indemnify any such person against: (A) any liability arising from
any untrue or misleading statement contained in or omission from any preliminary
prospectus if the deficiency is corrected in the final prospectus; or (B) any
liability which arises out of the failure of any such person to deliver a
prospectus when required by the Securities Act, provided that, in each case, a
sufficient number of copies of a prospectus complying with the requirements of
the Securities Act was timely provided by FindWhat to the person seeking
indemnification hereunder, subject to the requirement that such person shall
have provided FindWhat with reasonable notice requesting such prospectus.
FindWhat's indemnification obligation will remain in full force and effect
regardless of any investigation made by or on behalf of any indemnified person
and will survive transfer of the Registrable Securities by Affiliates.
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2.2. Indemnification by Affiliates. Each Affiliate agrees to indemnify
FindWhat against all expenses, claims, losses, damages, or liabilities,
including reasonable attorneys' fees, (collectively a "liability"), to which
FindWhat may become subject under the Securities Act, the Exchange Act, state
securities law, or any rule or regulation promulgated under any of the
foregoing, or at common law, arising out of or based upon: (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Shelf Registration Statement, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereto; or (ii) any omission
or alleged omission to state a material fact required to be stated in the Shelf
Registration Statement, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or necessary in order to make
any statement in the Shelf Registration Statement, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereto, not
misleading, in each case, to the extent (and only to the extent) that any such
liability arises out of or is based upon any such untrue statement or omission
made in the Shelf Registration Statement, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to FindWhat
by or on behalf of Affiliates expressly for use in the Shelf Registration
Statement, any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereto; provided, that in no event will the
liability of any Affiliate under this Subsection 2.2. exceed the net proceeds
from the offering received by such Affiliate. Notwithstanding the foregoing,
Affiliates will not be required to indemnify FindWhat against: (A) any liability
arising from any such untrue or misleading statement contained in or omission
from any preliminary prospectus if the deficiency is corrected in the final
prospectus; or (B) any liability which arises out of the failure of FindWhat to
deliver a prospectus when required by the Securities Act. Affiliates'
indemnification obligation will remain in full force and effect regardless of
any investigation made by or on behalf of FindWhat.
2.3. Defending Claims. Each party entitled to indemnification under
this Section 2 (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party receives written notice of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure to
deliver notice to the Indemnifying Party within a reasonable time of the
commencement of any such action shall not relieve the Indemnifying Party of any
obligations under this Agreement, except to the extent, but only to the extent,
that the Indemnifying Party's ability to defend against such claim or litigation
is impaired as a result of such failure to give notice, and shall not relieve
the Indemnifying Party of any liability it may have to any Indemnified Party
otherwise than under this Section 2. Notwithstanding the foregoing sentence, the
Indemnified Party may retain its own counsel to conduct the defense of any such
claim or litigation, and shall be entitled to be reimbursed by the Indemnifying
Party for expenses incurred by the Indemnified Party in defense of such claim or
litigation, in the event that (i) the Indemnifying Party does not assume the
defense of such claim or litigation within thirty (30) days after the
Indemnifying Party receives notice thereof from the Indemnified Party or (ii)
representation of such Indemnified Party by counsel retained by the Indemnifying
Party would be inappropriate due to actual or potential differing interests
between such Indemnifying Party and any other party represented by such counsel
in such proceeding. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party a release from all liability with respect to such claim or
litigation.
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2.4. Contribution. If the indemnification provided for in this Section
2 from the Indemnifying Party is unavailable to an Indemnified Party hereunder
in respect of any claim, loss, damage, or liability referred to herein, then the
Indemnifying Party, to the extent such indemnification is unavailable, in lieu
of indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such claims, losses, damages or
liabilities in such proportion as is appropriate to reflect the relative benefit
to or fault of the Indemnifying Party and Indemnified Party in connection with
the actions that resulted in such claims, losses, damages and liabilities. The
relative benefit to such Indemnifying Party and Indemnified Parties shall be
determined by reference to, among other things, the gross proceeds received by
each such party from the sale of Registrable Securities in the manner
contemplated hereby and the benefit received by FindWhat in consideration of the
issuance of the Registrable Securities. 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 to state a material
fact, has been 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. The amount
paid or payable by a party as a result of the claims, losses, damages or
liabilities referred to above shall be deemed to include any legal or other fees
or expenses reasonably incurred by such party in connection with any
investigation or proceeding. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this paragraph were determined by pro
rata allocation or by an other method of allocation that does not take account
of the equitable considerations referred to above in this paragraph. No party
guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any party.
Notwithstanding the provisions of this Section 2.4, no Affiliate shall be
required to contribute any amount in excess of the amount of net proceeds
received by such Affiliate from the sale of Registrable Securities giving rise
to such claims, losses, damages or liabilities.
2.5. Survival of Obligations. The obligations of FindWhat and each
Affiliate under this Section 2 shall survive the completion of any offering of
stock pursuant to a registration statement under this Agreement.
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3. GENERAL PROVISIONS.
3.1 Notices. All notices, consents or other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given (a) when delivered personally, (b) three Business
Days, with a "Business Day" being any day other than a Saturday, a Sunday, or a
U.S. federal holiday, after being mailed by first class certified mail, return
receipt requested, postage prepaid, or (c) one Business Day after being sent by
a reputable overnight delivery service, postage or delivery charges prepaid, to
the parties at their respective addresses stated below. Notices may also be
given by facsimile and shall be effective on the date transmitted if confirmed
within 24 hours thereafter by a signed original sent in the manner provided in
the preceding sentence. Notice to FindWhat at XxxxXxxx.xxx, 0000 Xxxxxxxxx
Xxxxxxx Xxxx. Xxxxx 000, Xx. Xxxxx, Xxxxxxx 00000, attn: Chief Financial Officer
(fax: (000) 000-0000), shall suffice as notice to FindWhat, provided that a copy
thereof is simultaneously sent to Porter, Wright, Xxxxxx & Xxxxxx LLP, 00 Xxxxx
Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, attention: Xxxx X. Xxxxxxx, Esq. (fax:
000-000-0000). Notice to Affiliates at Espotting, Inc., 00, Xxxxx Xxxx, Xxxxxx,
Xxxxxx Xxxxxxx X0 0XX, attention: President, shall suffice as notice to the
Affiliates, provided that a copy thereof is simultaneously sent to Fulbright &
Xxxxxxxx L.L.P., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
attention: Xxxxx Xxxxxx, Esq., and Beringea, 00-00 Xxxxxxxxx Xxxxxx Xxxxxx XX0X
0XX, attention Xxxx Xxxxx. Any party may change its address for notice and the
address to which copies must be sent by giving notice of the new addresses to
the other parties in accordance with this Section 3.1, except that any such
change of address notice shall not be effective unless and until received.
3.2 Entire Agreement. This Agreement and the Amended Merger Agreement,
constitute and contain the entire agreement and understanding of the parties
with respect to the subject matter hereof and supersede any and all prior
negotiations, correspondence, agreements, understandings, duties or obligations
between the parties respecting the subject matter hereof.
3.3 Amendment of Rights. Any provision of this Agreement may be amended
and the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of FindWhat and Affiliates (and/or any of their permitted successors or
assigns).
3.4 Governing Law. This Agreement shall be governed by and construed
exclusively in accordance with the internal laws of the State of Delaware,
excluding that body of law relating to conflict of laws and choice of law.
3.5 Severability. If one or more provisions of this Agreement are held
to be unenforceable under Applicable Law, then such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
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3.6 Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
3.7 Successors and Assigns. The registration rights of Affiliates under
this Agreement may be assigned to a party who acquires at least 25,000
Registrable Securities; provided, however that no party may be assigned any of
the foregoing rights until FindWhat is given written notice by the assigning
party at the time of such assignment stating the name and address of the
assignee and identifying the securities of FindWhat as to which the rights in
question are being assigned; and provided further, that any such assignee shall
receive such assigned rights subject to all the terms and conditions of this
Agreement. Subject to the foregoing, the provisions of this Agreement shall
inure to the benefit of, and shall be binding upon, the successors and permitted
assigns of the parties hereto.
3.8 Captions. The captions to sections of this Agreement have been
inserted for identification and reference purposes only and shall not be used to
construe or interpret this Agreement.
3.9 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
XXXXXXXX.XXX
By: /s/ Xxxxx Xxxxxxx-Xxxxxxxxx
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Its: Chairman and CEO
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AFFILIATES:
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
/s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx
/s/ Xxxxxxxx Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxxxxx Xxxxx
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
/s/ Xxxxxxx XxXxxxxxx
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Xxxxxxx XxXxxxxxx
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
/s/ Xxxxxxx Xxxxxxxxxx
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Xxxxxxx Xxxxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
/s/ Chrys Philalithes
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Chrys Philalithes
Beringea Limited
By: /s/ Xxxx Xxxxx
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Its: Attorney
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the Global Rights Fund II, L.P.
By: /s/ Xxxx Xxxxx
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Its: Attorney
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